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May 27, 1999


The opinion of the court was delivered by: Burns, U.S. Magistrate Judge.

  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.


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 ...

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