The opinion of the court was delivered by: Susan Illston, United States District Judge
ORDER (1) GRANTING MOTION TO DISMISS AND (2) REMANDING
CASE TO STATE COURT
Andre S. Alexander, an inmate at San Quentin State Prison, filed this pro se civil action in state court and defendants removed it to federal court under 28 U.S.C. § 1441(b) because a federal question was raised under 42 U.S.C. § 1983. Defendants now move to dismiss the action and Alexander opposes the motion. The court finds that the § 1983 claims must be dismissed because Alexander did not exhaust his administrative remedies before bringing the action. With the dismissal of the § 1983 claims, there remains no other federal question pending; the court will decline to exercise supplemental jurisdiction and will remand the case back to state court so that Alexander may litigate his remaining state law claims there.
Alexander filed a complaint in the Main County Superior Court on October 22, 2001 in which he asserted state law claims and a claim under 42 U.S.C. § 1983. Defendants removed the action to federal court under 28 U.S.C. § 1441(b) because the § 1983 claim presented a federal question. The case was assigned to Magistrate Judge James. Defendants moved to dismiss and plaintiff moved to amend his complaint. The court granted the motion to amend and denied the motion to dismiss. Although the parties had consented to proceed before a magistrate judge, the case erroneously was reassigned to the undersigned. Alexander filed an amended complaint on April 30, 2002, in which he asserted both state law claims and a claim under § 1983 repeating his assertion that defendants improperly confiscated incoming magazines and adding an assertion that the prison had improperly imposed a ban on prisoner internet mail. Defendants now move to dismiss the amended complaint on the grounds that Alexander did not exhaust his administrative remedies before bringing this action and that they are entitled to qualified immunity from the suit. Alexander opposes the motion.
Venue is proper in the Northern District of California under 28 U.S.C. § 1441(a) because the action was removed from the Main County Superior Court which is within this district. This court has removal and federal question jurisdiction over this action which includes claims under 42 U.S.C. § 1983 and was removed from state to federal court under 28 U.S.C. § 1441(b). See 28 U.S.C. § 1331.
A prisoner's alleged failure to exhaust his administrative remedies as required under 42 U.S.C. § 1997e creates an affirmative defense, so that defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, No. 00-16568, slip op. 1, 18 (9th Cir. Jan. 2, 2003). "[T]he failure to exhaust nonjudicial remedies that are not jurisdictional should be treated as a matter in abatement, which is subject to an unenumerated Rule 12(b) motion rather than a motion for summary judgment." Id. "In deciding a motion to dismiss for failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. . . . If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Id. at 19. Defendants' unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b) is the appropriate method under Wyatt to raise their argument of nonexhaustion.
"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). Even if an inmate seeks only money damages, he must complete the prison administrative grievance process that can provide some sort of relief on the complaint stated. See Booth v. Churner, 532 U.S. 731, 739-41 (2001). The exhaustion requirement must be implemented in a way consistent with Congressional purpose.
Beyond doubt, Congress enacted § 1997e(a) to
reduce the quantity and improve the quality of
prisoner suits; to this purpose, Congress "afforded
corrections officials time and opportunity to address
complaints internally before allowing the initiation
of a federal case. In some instances, corrective
action taken in response to an inmate's grievance
might improve prison administration and satisfy the
inmate, thereby obviating the need for litigation. . . .
In other instances, the internal review might
"filter out some frivolous claims." . . . And for
cases ultimately brought to court, adjudication could
be facilitated by an administrative record that
clarifies the contours of the controversy.
Porter v. Nussle, 122 S.Ct. 983
, 988 (2002) (citation omitted). Any doubt about whether it was sufficient for a prisoner to exhaust during the pendency of the suit ended recently with the decision in McKinney v. Carey, 311 F.3d 1198
(9th Cir. 2002). In McKinney, the court joined eight other circuits in ruling that a district court must dismiss an action involving prison conditions when the prisoner did not exhaust his administrative remedies before filing suit but was in the process of doing so when a motion to dismiss was filed. McKinney, 311 F.3d at 1199. In other words, exhaustion during the pendency of the action does not satisfy § 1997e.
The State of California provides its inmates and parolees the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." See Cal. Code Regs. tit. 15, § 3084.1(a). 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. See id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). Some relief is available under the California prison administrative grievance system for aggrieved prisoners.
It is undisputed that Alexander did not exhaust his administrative remedies before bringing this action or before the action was removed to federal court. Alexander pled that he received a Director's Level Decision on his grievance about the confiscation of his magazines on February 20, 2002. See Amend. Compl, pp. 2 and 12, Exh. 1; see also Plaintiff's Opposition To Defendants' Motion To Dismiss, p. 3. And he stated that a Director's Level Decision was issued regarding the confiscation of internet generated material on March 26, 2002. Plaintiff's Opposition, p. 3, Exh. 4. This action was originally filed in state court on October 22, 2001 and was removed to federal court on January 31, 2002. The administrative appeals process was not completed before this action under 42 U.S.C. § 1983 was brought. The language of § 1997e does not appear to be limited to actions filed in federal court by prisoners, and the court has not located any authority to not apply § 1997e to removed actions. Alexander's after-the-fact completion of the administrative appeal process does not aid him. See McKinney, 311 F.3d at 1199. His § 1983 claims must be dismissed without prejudice to him refiling the claims now that he has exhausted.
With the dismissal of the § 1983 claims, there remain for adjudication several state law claims pled in the Amended Complaint. The court declines to exercise supplemental jurisdiction over the state law claims now that the federal question claims have been dismissed. See 28 U.S.C. § 1367(c)(3). Alexander ought to be allowed to litigate his state law claims in state court where he first asserted those claims. The case therefore is be remanded to state court. See Swett v. Schenk, 792 F.2d 1447, 1450 (9th Cir. 1986) ("it is within the district court's discretion, once the basis for removal jurisdiction is dropped, whether to hear the rest of the action or remand it to the ...