The opinion of the court was delivered by: Burns, U.S. Magistrate Judge.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT [Doc.
No. 11]
Pending before this Court is defendants Motion to Dismiss the Complaint
against Rosie Garcia, O'Donnell, and J. Nettles under Federal Rule of
Civil Procedure Rules 12(b), 12(b)(1), and 12(b)(6). [Doc.
No. 11.]*fn1 Plaintiff in pro per, Frederick A. Cooper, did not file an
Opposition to the motion. Moving parties did not request any oral
argument. The matter was taken under submission on the papers and without
oral argument pursuant to Local Rule 7.1(d)(1). Upon careful
consideration of the facts and the law and with good cause appearing,
defendants' motion to dismiss is GRANTED; however, plaintiff shall be
granted 60 days leave to amend his Eighth Amendment (Count 1) claim for
relief only. All other claims for relief are DISMISSED as set forth
below.
Plaintiff, an inmate at Centinela State Prison, has filed a pro se
complaint seeking damages and injunctive relief pursuant to
42 U.S.C. § 1983 alleging two constitutional claims. First, plaintiff
claims his Eighth Amendment right to be free from cruel and unusual
punishment is being violated by defendants because prison officials have
denied plaintiff family visitation privileges. Presumably, although it is
far from clear, plaintiff claims he is being denied family visitation
because the prison has classified him with an "R-suffix," signifying a
history of sex offenses.*fn2 Plaintiff claims the denial of family
visitation is inappropriate because he has never been convicted of a sex
offense although he concedes he has been arrested for one. Second,
plaintiff contends that his Fourteenth Amendment right to procedural due
process was violated when prison officials decided to classify him as an
"R" suffix prisoner without conducting an "individualized assessment" of
his risk to others.
It appears from the complaint and its attachments that plaintiff has
only exhausted his administrative remedies with respect to his procedural
due process claim (Count 2). See Compl., Exhibits A & B. Although
plaintiff attached a page to his "Director's Level" appeal mentioning the
denial of family visits which presumably resulted from his "R" suffix,
the gravamen of his administrative grievance is that he should never have
been "R" classified in the first place. Plaintiff also attached a "Family
Visitation Application" which was denied by prison officials on June 17,
1998, because plaintiffs "C-file indicates an offense that does not
permit conjugal visits." Id. However, plaintiff has not provided any
evidence that he filed a separate CDC 602 form related to the June 17,
1998, visitation denial. In fact, the CDC 602 form which has been
exhausted was originally filed on April 30, 1998 — almost two
months before plaintiffs request for a family visit was denied. In sum,
it appears that plaintiff never administratively appealed his first claim
for relief that the denial of family visits was cruel and unusual
punishment in violation of the Eighth Amendment (Count 1); however, he has
exhausted his procedural due process cause of action (Count 2).
Defendants move to dismiss plaintiffs complaint under FED.R.CIV.P. 12
arguing that this Court lacks subject matter jurisdiction over his
section 1983 claims because he has not exhausted available administrative
remedies pursuant to 42 U.S.C. § 1997e(a). Mot. at 4-6.
42 U.S.C. § 1997e(a) provides that "[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, 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 civil rights statutes,
including section 1983, do not independently create a basis of
jurisdiction. Rather, separate jurisdictional counterparts exist in Title
28. See, e.g., 28 U.S.C. § 1343 (a)(3) (the jurisdictional
counterpart to 42 U.S.C. § 1983, giving district courts original
jurisdiction over civil actions to "redress the deprivation, under color
of state law, . . . [of] any right, privilege or immunity secured by the
Constitution of the United States"); id. § 1331 (conferring federal
question jurisdiction). Section 1997e(a) does not explicitly state that
the failure to exhaust divests the Court of the power conferred under
sections 1343 and 1331 to hear and decide civil right cases filed by
prisoners.
Although the Ninth Circuit has yet to decide whether failure to exhaust
under the Prison Litigation Reform Act of 1995 ("PLRA") impliedly
deprives the district court of subject matter jurisdiction, this Court
relies on the Sixth Circuit opinion Wright v. Morris, 111 F.3d 414, 421
(6th Cir.), cert denied, ___ U.S. ___, 118 S.Ct. 263, 139 L.Ed.2d 190
(1997), and concludes that it does not. In Wright, the Sixth Circuit held
that 42 U.S.C. § 1997e(a)'s exhaustion requirement was not
jurisdictional for purposes of deciding whether the statute may be
applied to cases pending at the time of enactment. Id. at 420. Wright
distinguished section 1997e(a) from "jurisdictional" statutes —
those that "'speak to the power of the court rather that to the rights or
the obligations of the parties,'" id. (quoting Landgraf v. USI Film
Products., 511 U.S. 244, 274, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)),
and found that "[s]ection 1997e(a), in contrast, addresses a party's
right to bring suit in court and does not speak in terms of jurisdiction
or the power of the court; it is merely an exhaustion requirement."
Wright 111 F.3d at 420.
Wright further rejected the argument that section 1997e(a)'s new
exhaustion requirement could be construed as "jurisdictional" under
Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).
Wright, 111 F.3d at 421-22. In Weinberger, the Supreme Court held
specifically that a statute requiring administrative exhaustion may be
classified as jurisdictional only if it is "more than a codified
requirement of administrative exhaustion." Id. at 757, 95 S.Ct. 2457. The
Court held that only "sweeping and direct" statutory language which
"states that 'no' action shall be brought," "not merely that only those
actions shall be brought in which administrative remedies have been
exhausted," bars district court federal question jurisdiction over
suits. Id.
Wright held that section 1997e(a) contains no "sweeping and direct
language" barring district court jurisdiction over federal question suits
brought pursuant to the Civil Rights Act; rather, it "indicates 'merely
that only those actions shall be brought in which administrative remedies
have been exhausted.'" Wright, 111 F.3d at 421 (quoting Weinberger, 422
U.S. at 757, 95 S.Ct. 2457).*fn3 Accordingly, any failure by the
plaintiff to administratively exhaust his claims does not deprive this
Court of subject matter jurisdiction over this case.
III. EXHAUSTION UNDER SECTION 1997e(a) OF THE PLRA
The PLRA, amended 42 U.S.C. § 1997e to provide that "no 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." See
42 U.S.C. § 1997e(a). Plaintiff, accordingly, must exhaust his
federal claims by proceeding with a prison appeal all the way through the
final Director's level of review. See Barry v. Ratelle, 985 F. Supp. 1235,
1237-38 (S.D.Cal. 1997) (citing CAL.CODE REGS., tit. 15, § 3084.5).
It is clear from the complaint that plaintiff has exhausted his
administrative remedies to the highest level with regard to his claim
that the "R" suffix placed in plaintiffs prison records violates his
right to procedural due process. See Compl., Exhibits A & B. Both the
Second Level Response and the Director Level Decision of the California
Department of Corrections considered plaintiffs request to remove the "R"
suffix from his prison records, and determined that the Unit
Classification Committee was justified in affixing an "R" suffix to
plaintiffs file. Id.
It appears that defendants have erroneously relied on the notion that
even if a prisoner has exhausted his administrative remedies to the
California Department of Corrections "Director's Level" with respect to
some claims, unless he has alleged full exhaustion of all of claims, then
the entire action should be dismissed. See Mot. at 4. This erroneous
argument appears to stem from habeas jurisprudence which requires
complete exhaustion of state judicial remedies. "Mixed" habeas
petitions, i.e., those including both exhausted and unexhausted claims,
must be dismissed in their entirety. See Rose v. Lundy, 455 U.S. 509,
510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Nothing in the language or
legislative history of the PLRA's amendments to section 1997e(a) supports
a "total" exhaustion requirement, and defendants have failed to explain
how or why habeas law is or should be applicable in section 1983
litigation. "Post conviction relief [under 28 U.S.C. § 2254] and
prisoner civil rights relief [under 42 U.S.C. § 1983] are analytically
very different." Martin v. United States, 96 F.3d 853, 855 (7th Cir.
1996); see also Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997) (finding
that the PLRA's filing fee provisions are inapplicable to section 2254 or
2255 proceedings).
In addition, imposing a total exhaustion requirement would appear to
contradict Congress' intent in enacting the PLRA. The clear import of the
Prison Litigation Reform Act, Pub.L. No. 104-134, Title VIII, §§
801-10, 110 Stat. 1321-66 to 1321-77 (1996), as reflected in its title,
is to curtail meritless prisoner litigation. Congress intended to
discourage "frivolous and abusive prison lawsuits," see H.R.Rep. No.
104-378, 104th Cong., 1st Sess. 166 (1995) (the prison litigation reforms
are intended to "discourage frivolous and abusive prison lawsuits"); and
to prevent convicted criminals from receiving "preferential treatment" to
that of "average law-abiding citizens." 144 Cong.Rec. 575251 daily ed.
May 25, 1995 (statement of Sen.
Dole); Green v. Nottingham, 90 F.3d 415, 417 (10th Cir. 1996); Schagene
v. United States, 37 Fed.Cl. 661, 661 (Fed.Cl. 1997). However, as a
purely practical matter, if the Court were to construe section 1997e(a) as
imposing a total exhaustion requirement and dismiss the entire action,
the prisoner would merely need to file a new suit alleging only his
exhausted claims. Thus, because total exhaustion "delays the resolution
of claims that are not frivolous . . . and [] tends to increase, rather
than alleviate, the caseload burden on . . . [the] federal court[],"
Rose, 455 U.S. at 522-23, 102 S.Ct. 1198 (Blackmun, J., concurring), and
the plain language of section 1997e(a) does not explicitly require it,
this Court has found it in the interests of judicial economy to reach the
merits of those section 1983 claims that have been exhausted and dismiss
only those that are not.*fn4
Accordingly, because plaintiff has failed to administratively exhaust
the allegations of his Eighth Amendment claim for relief (Count I), that
claim is DISMISSED without prejudice. Plaintiff shall have 60 days leave
to amend his Eighth Amendment claim for relief for the purpose of
demonstrating that all available administrative remedies have been
exhausted with respect to this claim.*fn5 Should plaintiff fail to
satisfactorily amend his complaint within 60 days to cure this deficiency
in a new complaint which is complete in itself, the Eighth ...