Opinion
No. C 03-4940 CRB (PR) (Docs # 4 5)
December 15, 2003
ORDER OF DISMISSAL
On September 23, 2003, James Stanley Williams filed a pro se prisoner complaint under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of California. Per order filed on October 28, 2003, the case was transferred to this court and assigned to the undersigned.
Williams, a state prisoner currently incarcerated at Salinas Valley State Prison ("SVSP"), seeks to challenge numerous aspects of his confinement, including the medical and psychiatric treatment he is receiving, and the manner in which the State of California appropriates funds to prison programs. He seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915 and requests that the court excuse his obligation to exhaust available administrative remedies because "none of [his] appeals have further been processed thru system."
The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide that ff[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). Although once within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). All available remedies must now be exhausted; those remedies "need not meet federal standards, nor must they be `plain, speedy, and effective.'"Id, (citation omitted). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.: Booth v. Churner, 532 U.S. 731, 741 (2001). Similarly, exhaustion is a prerequisite to all prisoner suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.Porter, 534 U.S. at 532.
The State of California provides its prisoners 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). It also provides them the right to file appeals alleging misconduct by correctional officers/officials. Id. § 3084.1(e). 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. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). Id at 1237-38.
Nonexhaustion under § 1997e(a) is an affirmative defense which should be brought by defendant(s) in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). However, a complaint may be dismissed by the court for failure to exhaust if a prisoner "conce[des] to nonexhaustion" and "no exception to exhaustion applies." Id. at 1120.
Here, Williams concedes he did not exhaust available administrative remedies through the Director's level of review before filing suit, but argues that the exhaustion requirement should be excused because his appeals were not processed and returned to him in a timely manner before he filed suit in September 2003. However, a review of the complaint makes clear that several of Williams' claims stem from incidents or occurrences that took place as late as June and August 2003. Williams is not entitled to an exception from the exhaustion requirement based on extraordinary delay as to these claims because the claims accrued only one or two months before he filed suit. Cf. Porter, 534 U.S. at 524 (noting that available administrative remedies need not be speedy).
Even if Williams could show that some of his appeals have been delayed for an extraordinary amount of time and that he is entitled to an exception from the exhaustion requirement as to these appeals/claims, it is clear from the complaint that some of Williams' other appeals (assuming that Williams actually filed appeals with respect to his recently-accrued claims) have not been delayed for an extraordinary amount of time and that he is not entitled to an exception from the exhaustion requirement as to these other appeals/claims. Cf. Booth, 532 U.S. at 741 n. 6 (courts should not read "futility or other exceptions" into 42 U.S.C. § 1997e(a)).
Because Williams has not exhausted all claims, and is not entitled to an exception from the exhaustion requirement as to all claims, his complaint must be DISMISSED without prejudice to refiling after exhausting California's prison administrative process as to all claims.See Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000) (dismissing without prejudice prisoner action containing exhausted and unexhausted claims because § 1997e(a) requires that available administrative remedies be exhausted as to all of the claims brought in a prisoner action): see also McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (action must be dismissed without prejudice unless prisoner exhausted available administrative remedies before he filed suit, even if prisoner fully exhausts while the suit is pending).
The Clerk shall terminate all pending motions as moot (see, e.g., docs # 4 5), enter judgment in accordance with this order, and close the file. No fee is due. SO ORDERED.
JUDGMENT IN A CIVIL CASE
() Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.(X) Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS SO ORDERED AND ADJUDGED.