Opinion
No. C 03-4655 TEH (pr)
November 10, 2003
ORDER OF DISMISSAL
Muharem E. Kurbegovich, an inmate at Pelican Bay State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983, concerning the non-delivery of his mail by prison staff. His complaint is now before the court for review pursuant to 28 U.S.C. § 1915A, which requires the court to engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The 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 28 U.S.C. § 1915A(b)(1),(2).
"No 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 and parolees the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." See Cal. Code Regs. tit. 15, § 3084.1(a). 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. See id § 3084.5;Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). See id at 1237-38.
Kurbegovich's complaint discloses that he did not exhaust his administrative remedies before filing this action. He specifically alleges that he did not appeal to the highest level of administrative appeal available to him and that his correspondence to the appropriate appeal officers has disappeared. Complaint, p. 2. The complaint and attachments show that Kurbegovich has not given the administrative appeal system adequate time to work. He attached to the complaint an administrative grievance dated September 10, 2003 that he had filled out only for the first level of the administrative appeal process. He also attached an appeal rejection form dated September 12, 2003, which stated that he had to attach documentary proof of his claim to have it considered. That form was returned to him less than thirty days before he mailed his complaint to this court. In other words, he had not even finished the first level of review before he filed this action.
Some relief is available in the California prison administrative grievance system. Kurbegovich therefore must exhaust his administrative remedies before he may file a civil rights action in federal court. Although exhaustion of administrative remedies is an affirmative defense, "[a] prisoner's concession to nonexhaustion is a valid ground for dismissal, so long as no exception to exhaustion applies." Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). That is the case here: Kurbegovich concedes that he did not exhaust his administrative remedies and there is no exception to the exhaustion rule for a prisoner who doesn't think the administrative appeals process is working fast enough for him.
This action is DISMISSED without prejudice to Kurbegovich filing a new action after he exhausts the available administrative remedies. Thein forma pauperis application is DENIED.
IT IS SO ORDERED.
JUDGMENT
This action is dismissed without prejudice to the filing of a new action after plaintiff exhausts the available administrative remedies.
IT IS SO ORDERED AND ADJUDGED.