Opinion
No. C 01-3273 WHA (PR)
November 19, 2003
James M. Humes, State of California Attorney General, San Francisco
JUDGMENT
The court has dismissed this prisoner in forma pauperis compliant. A judgment of dismissal without prejudice is entered in favor of defendants. Plaintiff shall take nothing by way of his complaint.
ORDER OF DISMISSAL
Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 challenging the conditions of his confinement.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). 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 claim may be dismissed without prejudice if it is clear from the record that the prisoner concedes that he did not exhaust administrative remedies. Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003).
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.
Plaintiff states that he did not exhaust these claims, and that he need not do so because "under 42 U.S.C. § 1983 suit [sic] you do not have to file or exhaust state remedies." As the United States Supreme Court cases cited above show, this is wrong. Exhaustion is required, and plaintiff concedes he did not exhaust before filing.
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.