The opinion of the court was delivered by: Vaughn R. Walker, United States District Judge
DEFENDANTS' MOTION TO
Plaintiff, a state prisoner at Salinas Valley State Prison in Soledad, California, filed this pro se prisoner action under 42 U.S.C. § 1983 seeking declaratory, injunctive and monetary relief. Per order filed on December 11, 2002, the court found that plaintiff's First Amended Complaint — alleging various instances of use of excessive force, deprivation of due process in connection with disciplinary proceedings and placement in administrative segregation, deliberate indifference to serious medical needs, and deprivation of legal mail — stated cognizable claims under § 1983 against nearly three dozen defendants, when liberally construed, and ordered the United States Marshal to served them. Defendants now move for dismissal under Rule 12(b) of the Federal Rules of Civil Procedure on the ground that plaintiff did not exhaust available administrative remedies under 42 U.S.C. § 1997e(a) before he filed suit. Plaintiff has filed an opposition and defendants have filed a reply.
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). Although once within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now mandatory. Porter v. Nussle, 122 5 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 inmate 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 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). It also provides them the right to file appeals alleging misconduct by correctional officers. 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 (SD 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.
Nonexhaustion under § 1997e(a) is an affirmative defense. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir 2003). It should be treated as a matter of abatement and brought in an "unenumerated Rule 12(b) motion rather than [in] a motion for summary judgment." Id (citations omitted). In deciding a motion to dismiss for failure to exhaust administrative remedies under § 1997e(a), the court may look beyond the pleadings and decide disputed issues of fact. Id at 1119-20. If the court concludes that the prisoner has not exhausted California's prison administrative process, the proper remedy is dismissal without prejudice. Id at 1120.
Here, defendants correctly raise nonexhaustion in an unenumerated motion to dismiss and argue that plaintiff's prisoner action should be dismissed without prejudice because plaintiff did not exhaust available administrative remedies under § 1997e(a) as to all claims before he filed suit. In support, defendants submit an extensive log of exhibits showing that many of the appeals plaintiff has filed in connection with his claims are still pending or were exhausted at the Director's level of review after he filed this suit. Plaintiff's submissions showing that he recently "exhausted" many of those appeals does not satisfy his obligation under § 1997e(a) to exhaust before filing suit. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir 2002) (action must be dismissed unless prisoner exhausted available administrative remedies before he filed suit, even if prisoner fully exhausts while the suit is pending). The action must be dismissed without prejudice. See id at 1200-01.
It matters not that plaintiff exhausted some of his appeals before he filed suit. His prisoner action must be dismissed without prejudice because plaintiff did not exhaust all of his claims before filing suit in federal court. See Graves v. Norris, 218 F.3d 884, 885 (8th Cir 2000) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a) requires that available administrative remedies be exhausted as to all of the claims brought in a prisoner action); Rivera v. Whitman, 161 F. Supp.2d 337, 340-43 (DNJ 2001) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a), as well as the legislative intent and policy interests behind it, compel a "total exhaustion" rule). Accord Terrell v. Brewer, 935 F.2d 1015, 1018-19 (9th Cir 1990) (in prisoner action brought under Bivens where only a portion of the claims had been exhausted, "the proper remedy [was] dismissal without prejudice"). Plaintiff may refile his complaint after exhausting California's prison administrative process as to all claims or, alternatively, file a new complaint containing only exhausted claims.
For the foregoing reasons, defendants' motion to dismiss for failure to exhaust administrative remedies (doc # 38) is GRANTED and the action is DISMISSED without prejudice.
The Clerk shall terminate all pending motions as moot (see, e.g., doc # 44), enter judgment in accordance with this order, and close the file.
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