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 Mule Creek State Prison, filed a pro se First Amended Complaint under 42 U.S.C. § 1983 alleging that on February 5, 2001, while at San Quentin State Prison ("SQSP"), he had a seizure and fell out of his upper bunk and fractured his shoulder as result of Correctional Officers Cato and Ozuna's earlier refusal to honor his "lower bunk chrono because of a seizure disorder." Plaintiff claims that Cato and Ozuna's refusal to honor the "lower bunk seizure chrono" and move him to a lower bunk constituted cruel and unusual punishment under the Eighth Amendment. Per order filed on October 9, 2002, the court found that plaintiff's allegations stated cognizable § 1983 claims for damages against Cato and Ozuna for deliberate indifference to plaintiff's safety, 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, 534 U.S. 516, 524 (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, 534 U.S. at 532.
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 plaintiff's prisoner action should be dismissed without prejudice because plaintiff did not exhaust available administrative remedies under § 1997e(a) as to all defendants before filing suit. In support, defendants submit documentary evidence showing that plaintiff's inmate appeal that proceeded to the final Director's level of review complained of Officer Cato's actions/omissions, but made no mention whatsoever of Officer Ozuna. Plaintiff responds that he need not name both defendants in his appeal in order to exhaust his claim of deliberate indifference.
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. In order to exhaust available administrative remedies under § 1997e(a) in connection with this suit, plaintiff accordingly must provide the California Department of Corrections an opportunity to address administratively his claims of deliberate indifference against both Officer Cato and Officer Ozuna before filing suit. See Porter, 534 U.S. at 531 (emphasizing importance of providing prison authorities with notice and opportunity to take action against staff wrongdoing before prisoner files 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 exhausted his claim against Officer Cato before filing suit. His prisoner action must be dismissed without prejudice because plaintiff did not exhaust all of his claims (i.e., his claim against Officer Cato and his claim against Officer Ozuna) 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 both Officer Cato and Officer Ozuna or, alternatively, file a new complaint containing only his exhausted claim against Officer Cato.
For the foregoing reasons, defendants' motion to dismiss for failure to exhaust administrative remedies (doc #10) 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 the file.