Opinion
No. C 01-3725 MMC (PR)
November 5, 2001
ORDER OF DISMISSAL
Plaintiff, a California prisoner currently incarcerated at the Deuel Vocational Institute in Tracy, California ("DVI"), filed this civil rights complaint under 42 U.S.C. § 1983. Plaintiff alleges that while he was at the Martinez County Jail he received inadequate medical treatment. Plaintiff seeks to have the jail pay him damages and to properly treat his foot. He also seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915. It is clear from plaintiff's complaint and attached documents, however, that he has not exhausted available administrative remedies.
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
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 exhaustion requirement under § 1997e(a) is mandatory and not merely directory. See Booth v. Churner, 121 S.Ct. 1819, 1825 (2001) ("We think that Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures."); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997). Moreover, plaintiff must plead that he has exhausted his administrative remedies. See Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998) (holding 1997e requires allegation of exhaustion with "sufficient specificity"). Plaintiff states that he never filed any administrative grievances because, he claims, Martinez County Jail does not have any administrative procedures. Plaintiff is incorrect. Under California Code of Regulations, title 15 section 1073, all county jails in California have an administrative appeal structure for reviewing prisoner complaints. Consequently, Section 1997e requires that plaintiff present his claims through the highest level of administrative review before raising them in a § 1983 action in federal court.
The Court notes that it is unlikely that the injunctive relief plaintiff seeks — medical treatment on his foot — can be accommodated by defendant Martinez County Jail, as plaintiff no longer is incarcerated at that institution. Under such circumstances, plaintiff should pursue such relief from his current institution (DVI). Petitioner should be aware that any federal court claim against DVI or its officials arising from medical treatment or the lack thereof must be exhausted and would be venued in the United States District Court for the Eastern District of California, where DVI is located. See 28 U.S.C. § 1391 (b); 84(b).
Accordingly, the complaint is DISMISSED without prejudice to refiling after plaintiff exhausts 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). In light of this dismissal, leave to proceed in forma pauperis is DENIED.
This order terminates docket number 2.
The clerk shall close the file.
IT IS SO ORDERED.
IT IS ORDERED AND ADJUDGED the complaint if DISMISSED without prejudice to refiling after plaintiff exhausts available administrative remedies. Leave to Proceed in forma pauperis is DENIED.