Opinion
No. C 01-0942 CRB (PR), (Doc # 21)
February 14, 2002
ORDER GRANTING MOTION TO DISMISS
Plaintiff a state prisoner at the Richard J. Donovan Correctional Facility in San Diego, California, filed a "voluminous" complaint for declaratoiy, injunctive and monetary relief under 42 U.S.C. § 1983, "virtually alleging daily instances of violations of his constitutional rights at Salinas Valley State Prison ("SVSP") from November 1997 to October 2000." May 22, 2001 Order at 1. Pursuant to 28 U.S.C. § 1915A, the court reviewed the complaint and dismissed plaintiff's claims for declaratory and injunctive relief as well as his claims for damages for verbal abuse, harassment, threats and deprivation of property. Id. at 2-3. The court nonetheless found that plaintiff's other claims for damages — more than 40 claims primarily regarding denial of access to the courts and denial of an opportunity to provide legal assistance to fellow inmates — "appear[ed] at least minimally cognizable under § 1983" and ordered them served on the more than 40 defendants named by plaintiff. Defendants now move for dismissal on the ground that plaintiff did not exhaust California's prison administrative process as required by 42 U.S.C. § 1997e(a). Plaintiff has filed an opposition and defendants have filed a reply.
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). They may even file appeals alleging misconduct by correctional officers. See 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, § 3084.5.5). 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 procedures." Booth v. Churner, 121 S.Ct. 18199,, 1825 (2001). A prisoner "seeking only money damages must complete a prison administrative process" that, like California's prison administrative process, "could provide some sort of relief on the complaint stated, but no money." Id. at 1821.
Defendants contend that this action should be dismissed because plaintiff's complaint shows that he did not exhaust administrative remedies as to all of his claims before filing this action. They specifically note that plaintiff failed to proceed beyond the first level of review with respect to many of the claims and, in some instances, chose to resort to the California Board of Control instead of CDC's prison administrative process. After a careful review of the complaint and plaintiff's more recent submissions of copies of his administrative appeals, the court finds that plaintiff's own pleadings show that he did not exhaust California's prison administrative process as to all of his claims before filing this action. That plaintiff made some initial attempts to exhaust some of the claims and that he has attempted to exhaust after he filed this action does not compel a different conclusion. The plain language of § 1997e(a) makes exhaustion a precondition to filing in federal court: "No action shall be brought . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(((a). A prisoner may not exhaust administrative remedies during the pendency of his federal suit. Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999).
Plaintiff's § 1983 prisoner action must be dismissed without prejudice because plaintiff did not exhaust all of his claims before filing in federal court. 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 BBBivens where only a portion of the claims had been exhausted, "the proper remedy [was] dismissal without prejudice"). Plaintiff presents no extraordinary circumstances which might compel that he be excused from doing so and complying with § 1997e(a). Cf. Booth, 121 S.Ct. at 1825 n. 6 (courts should not read "futility or other exceptions" into § 1997e(a)).
For the foregoing reasons, defendants' motion to dismiss (doc # 21) is GRANTED and this action is DISMISSED without prejudice.
The Ninth Circuit recently held that failure to exhaust under § 1997eee(a) ordinarily should be brought in a motion for summary judgment because it is an affirmative defense. Wyatt v. Terhune, No. 00-16568, 2002 WL 206393, at ** 5-7 (9th Cir. Feb. 12, 2002). Dismissal is nonetheless appropriate here because plaintiff's complaint and exhibits establish that he failed to exhaust all of his claims before filing in federal court. Cf. id. at *7. Put simply, plaintiff's own version of the facts shows that he did not comply with § 1997e(a) as a matter of law.
Defendants also move to dismiss certain claims on other grounds. However, the court need not address those grounds because the entire action must be dismissed without prejudice under § 1997e(a).
The Clerk shall close the file and terminate all pending motions as moot.
SO ORDERED.