Opinion
No. C 00-0701 MMC (PR)
May 22, 2002
ORDER DISMISSING CLAIMS FOR FAILURE TO EXHAUST; VACATING PRETRIAL AND TRIAL DATES (Docket Nos. 79, 85, 88)
This pro se civil rights case was filed by a California prisoner under 42 U.S.C. § 1983. On June 4, 2001, the Court denied the motions for summary judgment filed by plaintiff and defendant Dr. Kuenzi. The Court subsequently granted plaintiff leave to file a Second Amended Complaint, adding as defendants two additional dentists at Salinas Valley State Prison ("SVSP"), Dr. Dean Robinson and Dr. Kenneth G. Ponder. Plaintiff claims that the defendants provided him with insufficient dental care in violation of his Eighth Amendment rights. He seeks money damages.
On January 30, 2002, defendants Kuenzi, Ponder and Robinson served on plaintiff a motion for summary judgment. Defendants argue they are entitled to summary judgment because plaintiff has not exhausted his available administrative remedies, as required by 42 U.S.C. § 1997e(a). On April 15, 2002, plaintiff filed a response to the defendants' motion, which the Court construes as his opposition. Defendants filed a reply on May 2, 2002.
Due to a clerical error by defendants' counsel, the motion was not filed until March 12, 2002.
Additional copies of this response were filed on April 25 and May 7, 2002.
DISCUSSION
A. Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. At summary judgment, the judge must view the evidence in the light most favorable to the nonmoving party; if direct evidence produced by the moving party conflicts with direct evidence produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).
B. Discussion
The Prison Litigation Reform Act of 1995 ("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 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). 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, (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 Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision at the Director's level of review satisfies the exhaustion requirement under § 1997e(a). See id. at 1237-38. The new exhaustion requirement under § 1997e(a) is mandatory and not merely directory. Booth v. Churner, 121 S.Ct. 1819, 1825 (2001).
Defendants have submitted as evidence the administrative grievances plaintiff has filed, none of which seeks dental treatment or alleges that defendants denied him treatment. Plaintiff concedes that he did not pursue any administrative remedies regarding the instant claims, but argues that when he filed his complaint, exhaustion was not required because he only sought money damages. See Rumbles v. Hill, 182 F.3d 1064, 1069 (9th Cir. 1999), cert. denied sub nom. Hill v. Rumbles, 528 U.S. 1074 (2000), overruled by Booth, 121 S.Ct. at 1819. Exhaustion is no longer excused on that basis. In Booth, the Supreme Court held that "Congress has mandated exhaustion . . . regardless of the relief offered through administrative remedies." Booth, 121 S.Ct. at 1825. Section 1997e(a) requires exhaustion "regardless of the relief offered through administrative procedures." Id. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 1821.
It is not disputed that California's prison administrative process could provide some sort of relief on plaintiffs claims. Plaintiff argues, however, that the prison administrative process cannot afford him any relief at this time because the period for filing an administrative grievance has passed. Plaintiff points to a California regulation providing that a prisoner "must submit the appeal within 15 working days of the event or decision being appealed." Cal. Code Regs. § 3084.6 (c). Contrary to plaintiffs assertion, it is not clear that the expiration of this 15-day period would foreclose plaintiff from obtaining relief through the administrative appeals process. The California regulations recognize the need for exceptions to the regular appeals process. See, e.g., Cal. Code Regs. § 3084.7. The Court will not assume that all of plaintiffs administrative remedies are foreclosed because more than 15 days have passed since the events about which he complains. See Jackson v. District of Columbia, 254 F.3d 262, 269-70 (D.C. Cir. 2001) (holding warden's comment that there was nothing he could do and that the prisoner should "file in the court" did not exempt prisoner from exhaustion requirement); Graham v. Perez, 121 F. Supp.2d 317, 322 (S.D.N.Y. 2000) (dismissing complaint without prejudice although time for filing prison grievance had expired).
Moreover, in light of the Supreme Court's admonishment not to read "futility or other exceptions" into § 1997e(a), even if plaintiff had shown a likelihood that his administrative appeal will be dismissed as untimely, such showing would not suffice to excuse compliance with the exhaustion requirement. See Booth, 121 S.Ct. at 1825 n. 6. Indeed, the state administrative scheme at issue in Booth, like that in California, includes time limitations for filing the initial appeal and any appeal from a decision thereafter. See Booth v. Churner, 206 F.3d 289, 292-93 n. 2 (3rd Cir. 2000), aff'd 121 S.Ct. 1819 (2001). In Booth, the plaintiff did not pursue his administrative remedies beyond the first of three levels provided, Booth, 121 S.Ct. at 1821-22, and the period for filing the next level appeal had long since ended. Nevertheless, the Supreme Court affirmed the dismissal of the plaintiffs complaint without prejudice. Id. at 1821-22, 1825. Here, similarly, even if the time for plaintiff to file an administrative appeal has expired, the exhaustion requirement is not excused.
The plaintiff in Booth had five days from the denial of his first level appeal to file an appeal at the second level. Booth, 206 F.3d at n. 2.
Plaintiff further argues that Booth should not apply to his case retroactively. When the Supreme Court applies a rule of federal law to the parties before it, as it did in Booth, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate the announcement of the rule.See Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 94-99 (1993); cf.Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994) (determining retroactivity of federal statute, as opposed to federal court decision). As a result, the holding in Booth applies to this action and § 1997e(a) requires that plaintiff pursue his claims to the Director's level of review before raising those claims in a § 1983 action in federal court.
CONCLUSION
Because plaintiff has failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a), defendants' motion is GRANTED and plaintiffs claims are hereby DISMISSED without prejudice to plaintiffs refiling such claims in a new action in federal court after plaintiff has exhausted his administrative remedies. See Wyatt v. Terhune, 280 F.3d 1238, 1246-47 (9th Cir. 2002) (holding PLRA's exhaustion requirement creates affirmative defense ordinarily not subject to resolution under Rule 12(b)(6)); Ritza v. International Longshoremen's and Warehouseman's Union, 837 F.2d 365, 368-69 (9th Cir. 1988) (holding failure to exhaust nonjudicial remedies generally should be treated as if raised in "nonenumerated" motion to dismiss when raised in motion for summary judgment).
Under Wyatt, factual issues relevant to PLRA exhaustion would be determined at trial see Wyatt, 280 F.3d at 1246-47, whereas under Ritza, factual issues relevant to "a jurisdictional or related type of motion" could be determined before trial by the court, see Ritza, 837 F.2d at 369. Here, as noted, there are no material issues of disputed fact. The Court, however, has some question as to the appropriate form of order. Wyatt does not address the matter as the defendants there did not make a sufficient factual showing as to failure to exhaust.
This order terminates docket numbers 79, 85, 88, and any other pending motions. The pretrial conference and trial, scheduled for May 21, 2002 and June 10, 2002, respectively, are hereby vacated.
The clerk shall close the file.
IT IS SO ORDERED.