Opinion
No. C 01-2497 CRB (PR)
August 14, 2002
ORDER OF DISMISSAL
Plaintiff, a prisoner at the Contra Costa County Jail in Martinez, California ("CCCJ"), has filed a First Amended Complaint under 42 U.S.C. § 1983 alleging various violations of his federal rights at CCCJ against nearly two dozen defendants. Among other things, plaintiff challenges his housing classification, the jail's grievance and disciplinary procedures, and claims that he has not been reasonably accommodated under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"). In response to an earlier order, plaintiff more recently filed an Amendment and supporting documentation showing that he has exhausted CCCJ's administrative grievance process as to some of his claims. Plaintiff also added a claim challenging the denial of jail visits.
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). Although once within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now mandatory. Porter v. Nussle, 122 S.Ct. 983, 988 (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, 122 S.Ct. at 992.
A complaint may be dismissed for failure to exhaust only if failure to exhaust is obvious from the face of the complaint and/or any attached exhibits. See Wyatt v. Terhune, 280 F.3d 1238, 1246 (9th Cir. 2002). Here, the operative complaint and amendment and attachments thereto make clear that plaintiff did not exhaust all of his claims before filing in federal court. The complaint accordingly will be dismissed without prejudice. See Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a) requires that available administrative remedies be exhausted as to all of the claims brought in a prisoner action); Rivera v. Whitman, 161 F. Supp.2d 337, 340-43 (D. N.J. 2001) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a), as well as the legislative intent and policy interests behind it, compel a "total exhaustion" rule). Accord Terrell v. Brewer, 935 F.2d 1015, 1018-19 (9th Cir. 1990) (in prisoner action brought under Bivens where only a portion of the claims had been exhausted, "the proper remedy [was] dismissal without prejudice"). Plaintiff may refile his complaint after exhausting CCCJ's administrative grievance process as to all claims or, alternatively, file a new complaint containing only exhausted claim(s).
The Clerk shall close the file and
SO ORDERED.