The opinion of the court was delivered by: Charles R. Breyer, United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Plaintiff, a prisoner at California State Prison, Corcoran ("Corcoran"), filed this pro se prisoner action under 42 U.S.C. § 1983 against eleven prison officials at Salinas Valley State Prison ("SVSP"). Plaintiff alleges, among other things, that defendants subjected him to wrongful transfers from Corcoran to the Correctional Training Facility ("CTF") and to SVSP, sprayed him with "pepper spray," confiscated his glasses and medication, and kept him in a cold and contaminated cell for days with nothing more than his "boxer shorts." He further alleges that all of these actions were undertaken in retaliation for his filing grievances. Per order filed on July 2, 2002, the court found that plaintiffs allegations stated cognizable claims under § 1983 against the named eleven defendants, when liberally construed, and ordered the United States Marshal to serve 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 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 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/officials. 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.
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 plaintiffs prisoner action should be dismissed without prejudice because plaintiff did not exhaust available administrative remedies under § 1997e(a) as to all claims and defendants before filing suit. In support, defendants submit documentary evidence showing that none of plaintiffs inmate appeals that proceeded to the final Director's level of review alleged that plaintiff was retaliated against for filing grievances or for engaging in any other constitutionally protected conduct. The evidence also shows that plaintiff did not name the defendants sued in this action in the inmate appeals. Plaintiff insists that he did exhaust.
After a careful review of the record, the court finds that plaintiff did exhaust his constitutional claims of retaliation before filing suit. Nor did he exhaust these claims against all of the named defendants. California Code of Regulations title 15, § 3084.1 provides plaintiff the right and opportunity to file administrative appeals alleging misconduct by individual correctional officers/officials. Plaintiff accordingly must provide the California Department of Corrections an opportunity to address administratively his constitutional claims of retaliation against all of the named prison officials before filing suit. Because plaintiff did not do so, his action must be dismissed without prejudice. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (action must be dismissed without prejudice unless prisoner exhausted available administrative remedies before he filed suit, even if prisoner fully exhausts while the suit is pending).
It matters not that plaintiff may have exhausted some of his other claims 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 (D.N.J. 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 and defendants 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 #18) is GRANTED and the action is DISMISSED without prejudice.
The Clerk shall terminate all pending motions as moot, enter judgment in accordance with this order, and close