Opinion
No. C 02-1579 VRW (PR), (Docs #2 3)
July 12, 2002
ORDER OF DISMISSAL
Plaintiff, a state prisoner incarcerated at the Correctional Training Facility in Soledad, California, has filed a civil rights complaint under 42 U.S.C. § 1983 seeking damages from more than five dozen prison officials. He alleges that defendants were deliberately indifferent to his medical needs and subjected him to cruel and unusual punishment by confining him to his cell without access to the exercise yard. Plaintiff has not exhausted California's prison administrive process as to all of his claims, however.
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, 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). Similarly, exhaustion is a prerequisite to all prisoner 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.
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." Cal Code Regs tit 15, § 3084.1(a). They may even file appeals alleging misconduct by correctional officers. See 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. 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 1237-3 8.
Plaintiff first raised the claims raised herein in a complaint which on its face made clear that plaintiff had not exhausted available administrative remedies under 42 U.S.C. § 1997e(a) because he had not exhausted California's prison administrative process through the Director's level of review. The complaint accordingly was dismissed without prejudice to refiling after exhausting California's prison administrative process. See Houseman v. Padilla, No C 01-2649 VRW (PR) (ND Cal July 20, 2001) (order of dismissal); accord Wyatt v Terhune, 280 F.3d 1238, 1246 (9th Cir 2002) (complaint may be dismissed for failure to exhaust under § 1997e(a) if failure to exhaust is obvious from the face of the complaint and/or any attached exhibits).
Plaintiff has now refiled his complaint; however, the complaint and attached exhibits make clear that he has exhausted California's prison administrative process through the Director's level of review only as to one of his claims. Plaintiff in fact requests that he be excused from exhausting the other claims because "some issues cannot be raised or addressed" through the prison administrative process and because the process cannot grant the monetary "relief sought." Unfortunately for plaintiff, the Supreme Court has now made clear that exhaustion is a prerequisite to all prisoner suits about prison life, whether they involve general circumstances or particular episodes, and whether they seek relief not available in grievance proceedings, notably money damages. See Porter, 122 S Ct at 992. And nothing in the California Code of Regulations categorically precludes plaintiff from presenting his unexhausted claims for review through the prison administrative process. Cf Cal Code Regs tit 15, § 3084.1(a) (prisoners may appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare").
Nor has plaintiff presented any extraordinary circumstances which might compel that he be excused from complying with § 1997e(a). Cf Booth, 532 US at 741 n6 (courts should not read "futility or other exceptions" into § 1997e(a)).
Plaintiff's § 1983 prisoner action will be DISMISSED without prejudice because it is clear from the face of the complaint and attached exhibits that plaintiff did not exhaust all of his claims before filing in federal court. See Graves v. Norris, 218 F.3d 884, 885 (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, 1018-19 (9th Cir 1990) (in prisoner action brought under Bivens where only a portion of the claims had been exhausted, "the proper remedy [was] dismissal without prejudice"). Plaintiff may refile his complaint after exhausting California's prison administrative process as to all claims or, alternatively, file a new complaint containing only exhausted claim(s).
The Clerk shall close the file and terminate all pending motions (see, e.g., docs #2 3) as moot.
SO ORDERED.