Opinion
No. C 03-4987 WHA (PR)
November 18, 2003
ORDER OF DISMISSAL
Plaintiffs, who are prisoners at Pelican Bay State Prison, have filed a pro se civil rights complaint under 42 U.S.C. § 1983 challenging the conditions of their confinement.
The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § I997e 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 mandatory. Porter v. Nussle, 122 S.Ct. 983, 992 (2002);Booth v. Churner, 532 U.S. 731, 739-40 n. 5 (2001). The administrative remedies need not meet federal standards, nor need they be "plain, speedy and effective." Porter, 122 S.Ct. at 988.
Although nonexhaustion under § 1997e(a) is an affirmative defense, a prisoner's concession to nonexhaustion is a valid ground for dismissal.Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). Accordingly, a claim may be dismissed without prejudice if it is clear from the record that the prisoner concedes that he did not exhaust administrative remedies. Id.
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). 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.
Plaintiffs here state that they filed an administrative appeal (grievance) which is now pending at the third (director's) level. This is a concession that they did not completely exhaust before filing this suit.
Although plaintiffs contend that delays in obtaining director level decisions justify their filing this suit prematurely, the Court notes that the second level decision was only entered on October 2, 2003. Thus there had not been much delay at the time the complaint was filed. In any event, the United States Supreme Court has explicitly held that administrative remedies must be exhausted even if they are not "speedy."Porter, 122 S.Ct. at 988. to be mandatory.
The application for leave to proceed in forma pauperis (doc 2) is DENIED. No fee is due. This case is DISMISSED without prejudice to refiling after exhausting available administrative remedies.
The clerk shall close the file.
SO ORDERED.