Opinion
No. C 00-2774 WHA (PR)
September 24, 2003
JUDGMENT
The court has dismissed this prisoner in forma pauperis compliant. A judgment of dismissal without prejudice is entered in favor of defendants. Plaintiff shall take nothing by way of his complaint.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
This is a civil rights case filed pro se by a state prisoner. Plaintiff contends that he was fighting with another inmate in the yard when defendant Bosley ordered them to stop. He contends that he did so, but Bosley nevertheless hit him several times, fracturing his tibia. Plaintiff alleges that the other defendants, also correctional officers, were present but did nothing to stop Bosley.
Defendants have moved to dismiss on grounds plaintiff failed to exhaust his state administrative remedies. The motion is not opposed.
DISCUSSION
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). Compliance with the exhaustion requirement is required. Porter v. Nussle, 122 S.Ct. 983, 992 (2002);Booth v. Churner, 532 U.S. 731, 739-40 n. 5 (2001). Nonexhaustion under § 1997e(a) is an affirmative defense — defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). It should be raised in an unenumerated Rule 12(b) motion rather than in a motion for summary judgment. Id.. In deciding such a motion — a motion to dismiss for failure to exhaust nonjudicial remedies — 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 nonjudicial remedies, the proper remedy is dismissal without prejudice. Id at 1120.
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." Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its inmates the right to file administrative appeals alleging misconduct by correctional officers. 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.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). Id. at 1237-38. A prisoner need not proceed further and also exhaust state judicial remedies. Jenkins v. Morton, 148 F.3d 257, 259-60 (3d Cir. 1998). Nor is a prisoner required to comply with the California Tort Claims Act and present his claims to the State Board of Control in order to fulfill the exhaustion requirement. Rumbles v. Hill, 182 F.3d 1064, 1070 (9th Cir. 1999), overruled on other grounds by Booth v. Churner, 532 U.S. 731 (2001).
In his complaint plaintiff states that he filed an administrative appeal (grievance) regarding this incident. It was denied at the second formal level. He also-alleges that he appealed to the third level by filing a state tort claim. This did not exhaust his state administrative remedies because the third level of the Department of Corrections administrative appeal system remained "available" to him. See 42 U.S.C. § 1997e(a) (requiring exhaustion of all administrative remedies which are "available"). Defendants have provided declarations and copies of records which confirm that plaintiff pursued his administrative appeal only through the second level. He therefore did not exhaust all administrative remedies which were available. The motion to dismiss will be granted.
CONCLUSION
Defendants' motion to dismiss (doc 23) is GRANTED. Plaintiff's complaint is DISMISSED without prejudice to filing a new suit after exhausting available administrative remedies.
The clerk shall close the file.
SO ORDERED.