Opinion
No. C 00-2254 VRW (PR)
May 29, 2002
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc # 22)
Plaintiff a prisoner at Salinas Valley State Prison ("SVSP"), filed a pro se civil rights complaint under 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq ("ADA"), on June 27, 2000, seeking injunctive relief and damages. He alleges that he has a bad leg injury which requires him to use a walking stick for balance, but that prison officials will not allow him to use a walking stick or wheelchair, or, alternatively, install rails in his cell or the showers. He further alleges that on May 17, 2000, he fell stepping out of the shower because prison officials improperly revoked his former access to a wheelchair.
Per orders filed on September 15 and December 18, 2000, the court found that plaintiff's allegations, when liberally construed, stated cognizable claims under § 1983 and ADA, and ordered the United States Marshal to serve the named defendants. Defendants unsuccessfully moved for dismissal under Federal Rule of Civil Procedure 12(b)(6) arguing that plaintiff had failed to state a claim upon which relief can be granted. They now move for summary judgment on the ground that the undisputed facts show that plaintiff did not exhaust available administrative remedies under 42 U.S.C. § 1997e(a) before he filed suit. Plaintiff has filed an opposition.
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 P. Civ P 56(c). Material facts are those which may affect the outcome of the case. 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. Id.
The moving party' for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. But on an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed R Civ P 56(e). If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law."Celotex Corp., 477 US at 323.
B. Analysis
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). The State of California provides its prisoners 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). This includes the right to file appeals alleging misconduct by correctional officers, id § 3084.1(e), and appeals seeking reasonable accommodations/modifications under ADA, id § 3085.
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 the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (SD Cal. 1997) (citing Cal Code Regs tit 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). Id at 1237-38.
Although once within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now mandatory. Porter v. Nussle, 122 S.Ct 983, 988 (2002). All available remedies must now be exhausted; 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).
Exhaustion under § 1997e(a) is an affirmative defense. Wyatt v. Terhune, 280 F.3d 1238, 1246 (9th Cir 2002). Accordingly, it may be raised in a motion to dismiss only if it raises no disputed issues of fact and ordinarily must be raised in a motion for summary judgment. See id at 1246-47. Here, defendants correctly raise exhaustion in a motion for summary judgment and argue that the undisputed facts show that plaintiff did not exhaust available administrative remedies under § 1997e(a) before he filed suit. In support, they submit a copy of plaintiff's administrative appeal log showing that she Director's level decision was not issued until January 16, 2001, well after plaintiff filed this suit.
The plain language of§ 1997e(a) makes exhaustion a precondition to filing in federal court: "No action shall be brought . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). A prisoner may not exhaust administrative remedies during the pendency of his federal suit. See Jackson v. District of Columbia, 254 F.3d 262, 269 (DC Cir 2001); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir 1999); Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 534-35 (7th Cir 1999); see also Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir 1997) (stating that PLRA requires prisoners to exhaust administrative remedies "before seeking Bivens relief in federal court"), overruled on other grounds by Booth v. Churner, 532 U.S. 731 (2001). A suit filed by a prisoner before administrative remedies are exhausted must be dismissed without prejudice. See Jackson, 254 F.3d at 270: Freeman, 196 F.3d at 645; Perez, 182 F.3d at 535.
Allowing a prisoner to complete the grievance process while a suit is pending would be contrary to the plain language of § 1997e(a) and defeat the very purpose of the exhaustion requirement: relieving courts of the burden of lawsuits filed before prison officials have had an opportunity to resolve prisoner grievances on their own. Jackson, 254 F.3d at 269. Here, for example, it appears that plaintiff obtained most of the injunctive relief he sought (e.g., plaintiff was issued a wheelchair and moved to a cell closer to the shower) during the grievance proceedings that took place after he filed suit.
Defendants are entitled to summary judgment unless plaintiff sets forth specific facts showing that there is a genuine issue for trial on whether he exhausted administrative remedies before filing in federal court. Plaintiff does not. His contention that he need not exhaust administrative remedies before filing suit under ADA is without merit. The Supreme Court has made clear that exhaustion is now required for all actions brought with respect to prison conditions, whether under § 1983 or "`any other Federal law.'" Porter, 122 S.Ct at 988 (citations omitted). This is especially true where, as here, the state explicitly allows a prisoner to file ADA claims using its prison administrative process. See Cal Code Regs tit 15, § 3085. Defendants are "entitled to judgment as a matter of law." Celote Corp. v. Cattrett, 477 U.S. 317, 323 (1986).
As the Court concluded in Porter, "the PLRA's exhaustion requirement applies 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, 122 S.Ct at 992 (citation omitted).
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment (doc # 22) is GRANTED and the action is DISMISSED without prejudice.
The Clerk shall enter judgment in favor of defendants and close the file.