Opinion
No. C 03-2099 SI (pr)
May 15, 2003
JUDGMENT
This action is dismissed without prejudice to plaintiff filing a new action after he exhausts the available administrative remedies.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
Darryl Wakefield an inmate at Pelican Bay State Prison, filed this thispro se civil rights action under 42 U.S.C. § 1983. His complaint is now before the court for review pursuant to 28 U.S.C. § 1915A, which requires the court to engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must identify any cognizable claims, and dismiss any claims which 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. See 28 U.S.C. § 1915A(b)(1), (2).
"No 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." See 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 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). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). See id. at 1237-38.
Wakefield affirmatively pled in his complaint that he did not exhaust his adminsitrative remedies. He alleged that he did not present the facts in his complaint for review through the grievance procedure because he only sought monetary relief. Complaint, p. 2. Wakefield's assertion that monetary relief is not available in the California prison administrative appeal process does not aid him because the U.S. Supreme Court has decided that 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). Some relief is available in the California prison administrative grievance system. Wakefield therefore must exhaust his administrative remedies before he may file a civil rights action in federal court. Although exhaustion of administrative remedies is an affirmative defense, "[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). That is the case here: Wakefield concedes that he did not exhaust his administrative remedies and the exception on which he relies has already been rejected by the U.S. Supreme Court.
This action is DISMISSED without prejudice to Wakefield filing a new action after he exhausts the available administrative remedies. The in forma pauperis application is DENIED.
IT IS SO ORDERED.