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EKAS v. WILDS

United States District Court, Northern District of California


January 14, 2003

WILLIAM A. EKAS, PLAINTIFF(S),
v.
M. T. A. WILDS, ET AL., DEFENDANT(S)

The opinion of the court was delivered by: Charles R. Breyer, United States District Judge.

ORDER OF DISMISSAL (Doc #2)
Plaintiff, a state prisoner currently incarcerated at Mule Creek State Prison, has filed a civil rights complaint for damages under 42 U.S.C. § 1983 alleging that prison officials at San Quentin State Prison were deliberately indifferent to his serious medical needs when they ignored his requests to see a doctor. Plaintiff concedes that he did not appeal administratively to the highest level available to him because his appeal was "deemed dead" when he was finally allowed to see a doctor.

The Prison Litigation Reform Act of 1995 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." 42 U.S.C. § 1997e(a). Although once within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now mandatory. Porter v. Nussle, 122 S.Ct. 983, 988 (2002). All available remedies must now be exhausted; those remedies "need not meet federal standards, nor must they be `plain, speedy, and effective.'" Id.; (citation omitted). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit Id.; Booth v. Churner, 532 U.S. 731, 741 (2001). Similarly, exhaustion is a prerequisite to all prisoner suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 122 S.Ct. at 992.

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). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38.

"A prisoner's concession to nonexhaustion is a valid ground for dismissal, so long as no exception to exhaustion applies." Wyatt v. Terhune, No. 00-16568, 2003 WL 18500, at *9 (9th Cir. Jan. 2, 2003). Here, plaintiff concedes nonexhaustion and sets forth no extraordinary circumstance which compels that he be excused from exhausting under § 1997e(a). Cf. Booth, 532 U.S. at 741 n. 6 (courts should not read "futility or other exceptions" into § 1997e(a)). That he received the medical care he sought does not excuse his obligation to exhaust his allegations of correctional staff misconduct all the way to the Director's level of review. The complaint must be dismissed without prejudice. See Wyatt, 2003 WL 18500, at *8 (if district court concludes that prisoner has not exhausted, proper remedy is dismissal without prejudice).

Accordingly, plaintiff's request to proceed in forma pauperis (doc #2) is DENIED and the complaint is DISMISSED without prejudice to refiling after exhausting California's prison administrative process through the Director's level of review.

The clerk shall close the file and all pending motions as moot.

SO ORDERED.

20030114

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