Opinion
No. C 02-4764 MJJ (PR), (Docket No. 2)
November 4, 2002
ORDER OF DISMISSAL AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS
Plaintiff, an inmate at the San Francisco County Jail, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff makes two sets of claims. The first set of claims are against police officers, prosecutors, and defense attorneys for their conduct related to the criminal case for which he is incarcerated. The second set of claims are against jail officials regarding the conditions at the jail.
I.
A federal court must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer, or employee of a governmental entity. See 28 U.S.C § 1915A(a). This 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 id. at § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
A constitutionally cognizable claim under 42 U.S.C. § 1983 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 violation was committed by a person acting under the color of state law.See West v. Atkins, 487 U.S. 42, 48 (1988).
II.
In Heck v. Humphrey, 512 U.S. 477(1994), the Supreme Court held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. Id. at 486-487. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. See id. at 487. Heck also bars claims which necessarily implicate the validity of pending criminal charges. See Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir. 2000); Alvarez-Machain v. United States, 107 F.3d 696, 700-01 (9th Cir. 1997). A civil claim which necessarily implicates the validity of pending criminal charges does not accrue until after one has succeeded in the criminal realm. See id. (citing Heck).
Plaintiff claims that the police officers and prosecutors committed misconduct that led to his prosecution for murder. He also claims that his defense attorneys have provided him with effective assistance of counsel. If these claims are true, they would call into question the validity of his criminal charges. Consequently, these claims are barred by Heck, and are DISMISSED without prejudice to refiling in a § 1983 complaint once the charges have been dismissed, reversed, expunged, set aside or called into question.
III.
Plaintiffs other claims must be dismissed because it is clear from the face of the complaint that they have not been exhausted. 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).
"Congress has mandated exhaustion . . . regardless of the relief offered through administrative procedures." Booth v Churner, 121 S.Ct. 1819, 1825 (2001). A prisoner "seeking only money damages must complete a prison administrative process" that, like California's prison administrative process, "could provide some sort of relief on the complaint stated, but no money." Id. at 1821. Courts do not have discretion under § 1997e(a) to excuse exhaustion when it would not be appropriate and in the interests of justice. Id. at 1825 n. 5.
Plaintiff states in his complaint that the administrative grievances he has filed pertain to the mail procedures at the jail, which is "only a small portion of [his] case." The majority of plaintiffs claims pertain to other jail conditions, especially regarding the treatment of his diabetic condition about which plaintiff has not filed any administrative grievances. An action containing both exhausted and unexhausted claims at the time of filing should be dismissed without prejudice. See Graves v. Norris, 218 F.3d 884, 885-86 (8th Cir. 2000) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a) requires that available administrative remedies be exhausted as to all of the claims brought in a prisoner action); Rivera v. Whitman, 161 F. Supp.2d 337, 340-43 (D.N.J. 2001) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a), as well as the legislative intent and policy interests behind it, compel a "total exhaustion" rule); accord Terrell v. Brewer, 935 F.2d 1015, 10 18-19 (9th Cir. 1990) (in prisoner action brought underBivens where only a portion of the claims had been exhausted, "the proper remedy [was] dismissal without prejudice"). Section 1997e(a) requires that plaintiff present all of his claims to each level of administrative review before raising the claims in a § 1983 action in federal court.
Because it is clear from the face of the complaint that plaintiff has not exhausted his available administrative remedies, the complaint must be dismissed. Cf. Wyatt v. Terhune, 280 F.3d 1244, 1245-46 (9th Cir. 2002) (finding dismissal based on exhaustion not appropriate where it was not clear from the allegations in the complaint that claims had not been exhausted). With respect to plaintiffs claims regarding jail conditions, the dismissal is without prejudice to refiling after all available administrative remedies have been exhausted.
IV.
In light of the forgoing, this action is DISMISSED without prejudice as provided above. In light of this dismissal, leave to proceed in forma pauperis is DENIED and no fee is due at this time.
This order terminates all pending motions.