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February 6, 2004.


The opinion of the court was delivered by: MAXINE CHESNEY, District Judge


Latwahn McElroy ("plaintiff), currently incarcerated at Salinas Valley State Prison ("SVSP"), has filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he was exposed to harmful second-hand tobacco smoke, and that he has not received care for an ulcer and anxiety attacks. After reviewing the initial complaint, the Court found that the allegations stated a cognizable claim for violation of plaintiff's Eighth Amendment rights. Defendants have filed a motion to dismiss the complaint for failure to exhaust administrative remedies. Plaintiff has filed an opposition, and defendant has filed a reply.


 A. Standard of Review

  Exhaustion is an affirmative defense as to which defendants have the burden of proof; it should be raised in an "unenumerated" Rule 12(b) motion to dismiss rather than in a motion for summary judgment. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding an unenumerated motion under Rule 12(b) to dismiss for failure to exhaust Page 2 nonjudicial remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20.*fn1

 B. Analysis

  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). The exhaustion requirement under § 1997e(a) is mandatory and not merely directory. Porter v. Nussle, 122 So. Ct. 983, 988 (2002). All "available" remedies must be exhausted; those remedies "need not meet federal standards, nor must they be `plain, speedy, and effective'" Id. (citation omitted). Exhaustion is a prerequisite to all prisoner lawsuits concerning prison life, whether such actions involve general conditions or particular episodes, whether they allege excessive force or some other wrong, and even if they seek relief not available in grievance proceedings, such as money damages. Id. at 988, 992; Booth v. Churner, 532 U.S. 731, 741(2001).

  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). 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 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). See id at 1237-38. Page 3

  Defendants have filed a declaration of V. Duran ("Duran"), an office assistant at SVSP, who identifies herself as "a duly authorized custodian" of the prison records of SVSP inmates. Duran attaches to her declaration plaintiff's "central file" which, according to defendants, includes all of plaintiff's administrative grievances. A review of these grievances indicates that none of them concern the claims plaintiff raises here regarding the effects of second-hand tobacco smoke and the lack of medical attention for an ulcer and anxiety attacks. In his form complaint, plaintiff circles the answer "yes" to the question of whether he completed the administrative grievance procedure regarding the claims in his complaint. Plaintiff does not list any grievance log numbers or attach any grievances to his complaint to support his statement in his complaint that he has exhausted his administrative remedies. Plaintiff also has not filed any evidence in response to defendants' motion demonstrating that he has exhausted his claims in response to defendants' motion to dismiss. Nor does he dispute defendants' assertion that grievances are attached to Duran's declaration, none of which address plaintiff's claims, consist of all of the administrative grievances plaintiff has filed. The evidence provided by defendants demonstrates that plaintiff has not exhausted his available administrative remedies with respect to the claims in the complaint, and this evidence is uncontraverted by plaintiff. As a result, the Court concludes that plaintiff has failed to exhaust his available administrative remedies.


  For the foregoing reasons, defendants' motion to dismiss the complaint is GRANTED, and this action is DISMISSED without prejudice to refiling after all available administrative remedies have been exhausted. This order terminates docket number 13.



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