Opinion
No. C 01-1497 CRB (PR)
June 5, 2001
ORDER OF DISMISSAL
Plaintiff, a prisoner at San Quentin State Prison, has filed a civil rights complaint under 42 U.S.C. § 1983 challenging the conditions of his confinement. He seeks monetary relief, appointment of counsel and leave to proceed in forma pauperis under 28 U.S.C. § 1915. Plaintiff has not exhausted available prison administrative remedies, however.
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). The State of California provides its prisoners 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. 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.
"Congress has mandated exhaustion . . . regardless of the relief offered through administrative remedies." Booth v. Churner, No. 94-1964, 2001 WL 567712, at *5 (U.S. May 29, 2001). A prisoner "seeking only money damages must complete a prison administrative process" that, like California's prison administrative process, "could provide Sonic sort of relief on the complaint stated, but no money." Id. at *2.
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 *5 n. 5. Nor should they read "futility or other exceptions" into § 1997e(a). See id. at *5 n. 6.
Plaintiff has not exhausted available administrative remedies because he has not exhausted California's prison administrative process through the Director's level of review. Nor has he presented any extraordinary circumstances which might compel that he be excused from doing so. Accordingly, his requests for appointment of counsel (doc #2) and to proceed in forma pauperis (doc # 3) are DENIED and the complaint is DISMISSED without prejudice to refiling after exhausting available administrative remedies. See White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997) (affirming district court's sua sponte dismissal without prejudice for failure to exhaust administrative remedies).
The Clerk shall close the file.
SO ORDERED.