Opinion
C 02-1193 MMC (PR)
April 5, 2002
ORDER OF DISMISSAL
Plaintiff, an inmate at Santa Clara County Jail, filed a civil rights complaint under 42 U.S.C. § 1983, alleging constitutional violations by jail officials. Plaintiff also seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915. It is clear from plaintiff's complaint, however, that he has not exhausted available administrative remedies.
A federal court must conduct a preliminary screening in 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). In its review, the court must identify any cognizable claims and dismiss any claims that 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, however, must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
The Prison Litigation Reform Act of 1995 ("PLRA") 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). Under California Code of Regulations, title 15 section 1073, all county jails in California have an administrative appeal structure for reviewing prisoner complaints.
"Congress has mandated exhaustion . . . regardless of the relief offered through administrative procedures." Booth v. Churner, 121 S.Ct 1819, 1825 (2001). 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 indicates in his complaint that he has filed an administrative grievance, but states that he has not pursued all of the administrative remedies available to him at the Santa Clara County Jail. Section 1997e(a) requires that plaintiff pursue all available administrative remedies before raising his claims in a § 1983 action in federal court. Because it is clear from the face of the complaint that plaintiff has not pursued all of his available administrative remedies, the complaint must be dismissed without prejudice for failure to satisfy the PLRA's exhaustion requirement. 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).
Accordingly, this action is DISMISSED without prejudice to refiling after all available administrative remedies have been exhausted. In light of this dismissal, leave to proceed in forma pauperis is DENIED.
This order terminates all pending motions.
The Clerk shall close the file.
IT IS SO ORDERED.