Opinion
No. C 01-0336 PJH (PR)
May 22, 2002
INTRODUCTION
Plaintiff, a prisoner of the State of California at San Quentin State Prison (SQSP), filed a pro se civil fights complaint and first amended complaint under 42 U.S.C. § 1983 alleging the violation of his federal constitutional rights. The court found cognizable plaintiffs due process and equal protection claims based on his allegations that, unlike all other "Grade A" condemned prisoners assigned to clean the exercise yards, he is the only one not to receive a pay number and be monetarily compensated. Defendants have filed two motions to dismiss, to which plaintiff has responded. Plaintiff has filed requests to conduct discovery and to file a supplemental complaint. Plaintiff also has filed a motion for summary judgment. The court now addresses these matters.
DISCUSSION
Plaintiff names two defendants: Larry Mills of the San Quentin Accounting Department, and Warden J.S. Woodford. Each defendant has filed a separate motion to dismiss. Because the court grants defendant Woodford's motion to dismiss for failure to exhaust administrative remedies (docket no. 18), which pertains to all claims and defendants, the separate motion to dismiss defendant Mills (docket no. 13) is DISMISSED as moot.
Defendant Woodford moves to dismiss plaintiffs claims on the ground that he has failed to exhaust his administrative remedies. The Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (1996) ("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). The Supreme Court has made clear that a prisoner must exhaust all available remedies as a prerequisite to filing a federal lawsuit. Booth v. Churner, 532 U.S. 731, 739-40 n. 5 (2001). Several circuits have held that the phrase "no action shall be brought" means that an action must be dismissed unless the prisoner exhausted his available administrative remedies before he or she filed suit, even if the prisoner fully exhausts while the suit is pending. See Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999); Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999); see also Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997) (stating that PLRA requires prisoners to exhaust administrative remedies "before seeking Bivens relief in federal court"), overruled on other grounds by Booth v. Churner, 532 U.S. 731 (2001). The exhaustion requirement is intended to serve a number of purposes, including deterring frivolous lawsuits and creating an administrative record allowing courts to evaluate the relative merits of claims. Gomez v. Winslow, 177 F. Supp.2d 977, 2001 WL 1652695, *4 (N.D. Cal. 2001) (Illston, J.) (citing Wyatt v. Leonard, 193 F.3d 876, 878-79 (6th Cir. 2000)). One of the most relevant purposes of the exhaustion requirement is that it allows prison officials to receive notice of complaints so that they can take proper action. 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." 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. § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). Plaintiff alleges that prior to filing the present action, he filed two first level administrative grievances regarding the failure to assign him a pay number but prison officials responded to neither. After filing this action, plaintiff again attempted to pursue his administrative remedies. According to defendants, plaintiff has proceeded to the third "Director's" level of review, but has not yet received a response at that level. Plaintiff has not provided evidence to the contrary. As plaintiff did not fully exhaust his administrative remedies before filing this action, the claims must be DISMISSED. This dismissal is without prejudice, however, to plaintiff returning to court with a new action once exhaustion is completed.
The court notes that, in light of evidence submitted by plaintiff, it appears that the matter at hand is ripe for resolution by prison officials. Specifically, a memorandum dated November 8, 2001, from M.D. Thompson of the Work Incentive Program at SQSP addressed to the San Quentin Support Services Fund concluded that:
In researching Vieira's appeal I found that he is correct in that the four other condemned yard porters have had pay positions for some time. Also, I have found that on three or four occasions East Block supervisory staff have submitted memorandums requesting a pay position to be assigned for the Yard #5 porter position without success. [¶] It is my recommendation t at San Quentin State Prison establish an East Block #5 Yard position, to avoid the possibility of a discrimination legal confrontation. (Plaintiff's Exhibit 3.)
A second memorandum, written to the SQSP Business Manager on December 12, 2001, and signed by five prison officials, including Associate Warden D. Wooten, stated:
I am requesting that Inmate Vierra (sic), H31000, be given pay number 6433-1013, to coincide with our condemned yard workers. The Thompson Decree states that defendants will also provide pay numbers for yard tender positions in East Block responsible for yard chores similar to those performed by the tier tenders in North
Segregation as directed by unit staff. (Plaintiff's Exhibit 5.) While the memorandum is stamped "Approved" with an effective date of October 21, 2001, plaintiff alleges that he has as yet to receive any payment. The court encourages SQSP prison officials to work to resolve this matter administratively as expeditously as possible.
Plaintiffs requests to conduct discovery and to file a supplemental complaint, and his motion for summary judgment are DISMISSED as moot. (Docket nos. 23, 24, 27). Any and all other outstanding motions filed by either party are also DISMISSED as moot.
The clerk of court shall enter judgment and close the file.
IT IS SO ORDERED.