Opinion
No. C 01-2496 CRB (PR)
August 7, 2003
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
INTRODUCTION
Plaintiff, a prisoner at Corcoran State Prison, has filed a pro se civil rights complaint for damages and declaratory relief under 42 U.S.C. § 1983. Plaintiff alleges that on January 14, 2000, he appeared before San Francisco Superior Court Judge James L. Warren for sentencing. After Judge Warren denied his motion for a new trial, plaintiff became angry and upset, and "deliberately exited" the courtroom in an attempt "to disrupt and delay the sentencing procedure." He was quickly apprehended and handcuffed by several San Francisco deputy sheriffs. Plaintiff alleges that the deputy sheriffs used excessive force to restrain him and that they beat and assaulted him while he was handcuffed as they removed him to a nearby holding cell.
Per Order dated August 28, 2001, the court found that plaintiffs allegations, when liberally construed, stated cognizable § 1983 claims for damages against Lieutenant Williams and Deputies Jacobs, Chu, and Joseph for their part in the alleged beating and against Sheriff Hennessey for failure to promulgate adequate policies. The court dismissed Governor Davis and plaintiffs 42 U.S.C. § 1985 (3) claim of conspiracy, and ordered the United States Marshal to serve defendants. Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the ground that plaintiff failed to exhaust available administrative remedies under 42 U.S.C. § 1997e (a) before he filed suit. Plaintiff has filed an opposition.
LEGAL STANDARD
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, 534 U.S. 516, 524 (2002). All available remedies must now be exhausted and 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 Id.; Booth v. Churner, 532 U.S. 731, 741 (2001). Similarly, exhaustion is a prerequisite to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.
Nonexhaustion under § 1997e (a) is an affirmative defense. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). It should be treated as a matter of abatement and brought in an "unenumerated Rule 12(b) motion rather than [in] a motion for summary judgment." Id. (citations omitted). In deciding a motion to dismiss for failure to exhaust administrative remedies under § 1997e (a), the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. If the court concludes that the prisoner has not exhausted the pertinent jail or state prison administrative process, the proper remedy is dismissal without prejudice. Id. at 1120.
Although defendants did not file this motion as an unenumerated Rule 12(b) motion, the court will consider their motion for summary judgment as such.
DISCUSSION
Section 1073 of Title 15 of the California Code of Regulations provides county jail inmates with a right to "appeal and have resolved grievances" relating to their confinement. Pursuant to Section 1073, the San Francisco Sheriff's Department, whose areas of operation include the City and County of San Francisco's jails and courts, has established a Prisoner Grievance System.
It is undisputed that the administrative remedies available to plaintiff and at issue here are those of the San Francisco Sheriff's Department. At the time of the incident, prisoner grievances were handled according to Procedure Number F-06 of the San Francisco Sheriff's Department Policy and Procedure Manual. According to Procedure Number F-06, there are two possible methods under the Prisoner Grievance System for addressing plaintiffs complaint of excessive force against the deputy sheriffs: (1) the formal grievance procedure, and (2) the staff misconduct procedure. In order to exhaust available administrative remedies under either procedure, the prisoner must proceed with several steps that culminate in an appeal decision.
The formal grievance procedure is initiated by the prisoner's submission of a formal grievance form. The grievance is then routed to the Ombudsman who refers it to a designated supervisor for response. After the designated supervisor has responded to the grievance in writing, it is returned to the Ombudsman to forward to the prisoner. If the prisoner is not satisfied with the initial response, he or she may appeal to the next higher designated supervisor for a final response. Once the appeal is complete, the prisoner is notified that his or her administrative remedies have been exhausted. The appeal response is forwarded to the Facility Commander and the prisoner. "Appeal decisions complete the grievance process and are final."
The staff misconduct procedure is more a "special" procedure under the formal grievance procedure than a separate procedure. A prisoner initiates a staff misconduct grievance by filing a formal grievance form and, like all grievances, the grievance is logged and referred to an appropriate supervisor for response. If the prisoner wishes to appeal the response concerning a Sheriff's employee, the appeal is forwarded to the Chief Deputy who then may deny the appeal, refer the matter to the Undersheriff for consideration, or refer the matter to Internal Affairs for investigation. (Grievances will not be forwarded to Internal Affairs "unless an emergency situation is evident.") The prisoner will receive notice of the appeal decision by the Chief Deputy or Undersheriff, or notice that the matter is being investigated by Internal Affairs. He will not receive a detailed response related to personnel matters.
It is undisputed that plaintiff did not file a prisoner grievance of any kind with the San Francisco Sheriff's Department. Yet, plaintiff maintains that the following sequence of events constitutes exhaustion of his administrative remedies:
On January 19, 2000, approximately five days after the incident at issue, plaintiff was sentenced and transported to San Quentin State Prison. Upon arrival, a state correctional officer inquired about plaintiffs bruises and abrasions and sent him to a prison medical doctor for examination and treatment. Two days later, Sergeant McGarvey of the San Quentin Internal Security Unit, interviewed plaintiff and documented his injuries and account of the incident with video and audio tapes. According to plaintiffs complaint, the purpose of McGarvey's investigation was "to avoid liability on behalf of the Department of Corrections and hold them harmless." Sergeant McGarvey made a complaint with the San Francisco Sheriff's Internal Affairs Department. The next day, Senior Deputy Fluellen of the San Francisco Sheriff's Internal Affairs Department responded to McGarvey's complaint of staff misconduct by conducting a 45-minute interview with plaintiff. "Fluellens' concern was to secure the names of all personnel involved in the assault and the location and time." The result of the Internal Affairs investigation was documented in a report dated March 29, 2001; however, because Internal Affairs records are kept confidential, plaintiff did not receive a copy of the report.
Plaintiff contends that his administrative remedies were exhausted under the San Francisco Sheriff Department's staff misconduct procedure because the complaint filed by Sergeant McGarvey resulted in an Internal Affairs investigation. Plaintiff maintains that McGarvey's complaint and a formal prisoner grievance "are one and the same" when staff misconduct is alleged because the result "is the same [Internal Affairs] investigation."
Contrary to plaintiffs contention, an Internal Affairs investigation is not a step in, much less the culmination of, the Prisoner Grievance process. The record demonstrates that exhaustion of plaintiffs administrative remedies under the Prisoner Grievance process occurs only after the appropriate supervisor has responded to an original formal grievance and made a final decision on an appeal. In the case of a formal grievance alleging staff misconduct, this occurs when the prisoner receives notice of the appeal decision by the Chief Deputy or Undersheriff, or, arguably, when the prisoner receives notice that the matter is being referred to Internal Affairs by the Chief Deputy. Plaintiff makes no such showing.
That McGarvey filed a complaint with the Internal Affairs Department does not compel a different conclusion. An Internal Affairs investigation plays no part in the Sheriff Department's formal grievance procedure and is instigated in staff misconduct grievances only "if necessary," or when "an emergency situation is present." Internal Affairs investigations are separate and distinct from grievance procedures. Unlike a grievance procedure, where the prisoner is kept informed at each step, an Internal Affairs investigation is a confidential personnel matter handled internally and not shared with the prisoner. As such, an Internal Affairs investigation cannot be an administrative remedy available to plaintiff because he has no knowledge of the results and cannot demonstrate that he obtained any resolution to the complaint filed by Sergeant McGarvey. See Rivera v. Goord, 253 F. Supp.2d 735, 752 (S.D.N.Y. 2003) (finding plaintiff did not exhaust administrative remedies when he could not demonstrate that the outcome of an investigation produced a favorable resolution for him).
Plaintiff was required to file a grievance and exhaust all administrative remedies available to him through the San Francisco Sheriff's Department's Prisoner Grievance System, "irrespective of the forms of relief sought and offered through administrative avenues, " before he could pursue his § 1983 claim in federal court. Booth, 532 U.S. at 741 n. 6; accord Porter, 534 U.S. at 524. He did not do so. Nor has he shown that he should be excused from exhausting before filing suit because the Prisoner Grievance System was not available to him or because of some extraordinary circumstance. Cf. Harris v. Baca, No. CV 01-10905 RSWL (CTX), 2003 WL 21384306, at *3 (C.D. Cal. June 11, 2003) (rejecting prisoner's contention that his attorney's grievance to the sheriff exhausted his administrative remedies because even if there was another means of remedy available, prisoner is not excused from the prison's established complaint procedure). Plaintiff's action must be dismissed without prejudice. See Wyatt, 315 F.3d at 1120; see also McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (action must be dismissed without prejudice unless prisoner exhausted available administrative remedies before he filed suit, even if prisoner fully exhausts while the suit is pending).
The only action that plaintiff took on his own behalf was filing a claim with the City County of San Francisco alleging excessive force by San Francisco deputy sheriffs, which the City and County ultimately denied and plaintiff did not appeal. Cf. Lavista v. Beeler, 195 F.3d 254, 257 (6th Cir. 1999) ("Congress intended the exhaustion requirement to apply to the prison's grievance procedures, regardless of what other administrative remedies might also be available.").
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss for failure to exhaust administrative remedies (doc #41) is GRANTED and the action is DISMISSED without prejudice.
The Clerk shall terminate all pending motions as moot, enter judgment in accordance with this order, and close the file.
SO ORDERED.