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United States District Court, S.D. California

March 25, 2004.


The opinion of the court was delivered by: DANA M. SABRAW, District Judge

On March 6, 2003, Plaintiff Mubarak Mubarak, a state prisoner proceeding pro se and in forma pauper is, filed his Third Amended Complaint ("TAG") pursuant to 42 U.S.C. § 1983, alleging civil rights violations against Defendants. On August 19, 2003, Defendants responded with a Motion to Dismiss the TAC for Failure to Exhaust Administrative Remedies and to Strike the complaint and its prayer for punitive damages and non — monetary relief. Plaintiff did not file an Opposition. The motion was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Civ. L.R. 72.3, for a Report and Recommendation ("Report"). Page 2

In compliance with Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 14 (9th Cir. 2003), the Honorable James F. Stiven, United States Magistrate Judge, issued an Order on September 30, 2003, giving Plaintiff notice of his possible failure to exhaust his third cause of action, and requiring Plaintiff to submit affidavits to that effect. [Doc. 29.] Originally, Plaintiff had until October 24, 2003, to respond to this Order. Plaintiff — after receiving two extensions on this deadline — responded on February 18, 2004.

  On February 23, 2004, Magistrate Judge Stiven issued his Report, recommending that the Court grant — in — part and deny — in — part Defendants' motion to dismiss and to strike. Judge Stiven recommended the Court dismiss the third cause of action in the TAC without prejudice for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act of 1997 ("PLRA"), as set forth in 42 U.S.C. § 1997e. Judge Stiven further recommended the Court deny the motion to dismiss claims One, Two, and Four, and deny the motion to strike Plaintiff's prayer for punitive damages and injunctive/declaratory relief. In addition, Judge Stiven recommended Plaintiff's request for transfer to federal custody and transfer closer to his home be stricken, and that judicial notice should be taken of the exhibits attached to Defendants' motion. Finally, as Plaintiff returned a signed affidavit verifying his Third Amended Complaint on February 18, 2004, Judge Stiven recommended the Motion to Strike the Complaint be denied as moot.

  Defendants Objected to the Report on March 12, 2004. Plaintiff Objected on March 15, 2004.

  Based on this Court's review of Judge Stiven's Report and Recommendation, the pleadings, and the relevant authorities, the Court ADOPTS Judge Stiven's recommendation regarding Plaintiff's failure to exhaust his administrative remedies. Because Plaintiff has not exhausted all his claims before bringing suit — as required by the PLRA — the Third Amended Complaint is DISMISSED without prejudice in its entirety. In light of this ruling, the Court declines to address the other issues raised by Defendants' motion to dismiss and to strike. Page 3



  Plaintiff's first two claims concern events that occurred on July 9, 2000, when Defendant Floras allegedly beat Plaintiff in his cell. After the alleged beating, Plaintiff avers Defendants Hewitt and Ketcham slammed his face into the floor when he refused to remove his pants in front of a female medical technician because of his Islamic faith. Plaintiff also complains Defendants Hewitt, Ketcham and Vogt all filed false reports to cover up these physical attacks,

  Plaintiff's third cause of action involves the events of September 22, 2000, when Defendant Sosa purportedly beat Plaintiff's arm while Defendant Aboytes watched. The fourth cause of action is essentially a reiteration of Plaintiff's first two claims, providing an overview of the alleged Constitutional violations.



  The Court reviews a Magistrate Judge's Report and Recommendation, if objected to, de novo. See Hunt v. Pyler, 336 F.3d 839, 844 (9th Cir. 2003) (quoting McKeever v. Block. 932 F.2d 795, 798 (9th Cir. 1991)). As discussed below, the Court DISMISSES Plaintiff's action without prejudice for failing to completely exhaust his administrative remedies.

 A. Failure to Exhaust Third Claim

  The Court agrees with Judge Stiven's conclusion that Plaintiff has failed to exhaust his third cause of action, as required by 42 U.S.C. § 1997(e)(a). (Report at 5-7.) Nowhere in his TAC or his Objections to the Motion to Dismiss did Plaintiff submit any documentation or evidence that this claim had been considered by CDC officials at any level of administrative review. Accordingly, Plaintiff's TAC raises both exhausted and non — exhausted claims (a "mixed complaint"). Page 4

 B. "Total Exhaustion" Requirement of the PLRA

  Ordinarily, a plaintiff bringing Section 1983 claims is not required to exhaust all available administrative remedies as a prerequisite to suit. See Patsy v. Bd. of Regents. 457 U.S. 496, 516 (1982). However, under the PLRA, prisoners bringing such claims do have an administrative exhaustion requirement. See 42U.S.C. § 1997e(a). Defendants maintain that strict adherence to this exhaustion requirement mandates that an inmate plaintiff exhaust all the claims he seeks to litigate before bringing suit. (Defendants' Objections at 6-10.) According to Defendants, the Court must dismiss a mixed complaint. Defendants ask this Court to adopt the "total exhaustion" approach of the Eighth Circuit in Graves v. Norris. 218 F.3d 884 (8th Cir. 2000), where the Court held the "plain language of § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims." Id. at 885 (emphasis added).

  The Ninth Circuit has not addressed this issue, and the district courts of this Circuit are split on whether "total exhaustion" of a mixed complaint is required by the PLRA. Compare Lira v. Director of Corr., No. C-00-905 SI (PR), 2002 WL 1034043, at *3 (N.D. Cal. May 17, 2002) (requiring "total exhaustion"), and Ellison v. Cal. Dep't of Corr. No. C-02-1393 CRB (PR), 2003 WL 21209659, at *2 (N.D. Cal. May 19, 2003) (same): with Cooper v. Garcia. 55 F. Supp.2d 1090, 1094 (S.D. Cal. 1999) (noting that there is "[n]othing in the language or legislative history of the PLRA's amendments to section 1997e(a) [that] supports a `total' exhaustion requirement") (citation omitted), and Blackmon v. Crawford. No. CV-01-0111, 2004 WL 369883, at *3-6 (D. Nev. Feb 25, 2004) (finding that "total exhaustion" is contrary to congressional intent and public policy).

  This Court concludes the "total exhaustion" approach is supported by the plain meaning of the PLRA's exhaustion provision and strong policy interests. The PLRA states: "No action shall be brought . . . until such administrative remedies as are available are exhausted," 28 U.S.C. § 1997e(a) (emphasis added). Use of the term "action" instead of "claim" evidences an intent to disallow mixed complaints. The Legislature could have chosen the phrase: "No claim shall be brought . . .," but instead elected to use broader language and to disallow Page 5 unexhausted actions. See Graves. 218 F.3d at 885; Smeltzer v. Hook, 235 F. Supp.2d 746, 744 (W.D. Mich. 2002). Reference to other provisions within the PLRA itself makes the distinction between "claim" and "action" even clearer. See Rivera v. Whitman. 161 F. Supp.2d 337, 341 (D.N.J. 2001) (abrogated on other grounds by Ray v. Kertes, 285 F.3d 287, 293 n.6 (3rd Cir. 2003) (contrasting § 1997e(c)(1) with § 1997e(c)(2)).

  The Ninth Circuit also has held that exhaustion of administrative remedies under the PLRA is a prerequisite to filing suit where none of the claims in the complaint are exhausted. In McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002), the Court stated that a "suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; the district court lacks jurisdiction to resolve the claim on the merits, even if the prisoner exhausts intra — prison remedies before judgment." Id. at 1199 (citing Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 534-35 (7th Cir. 1999)). Accordingly, the Court made clear that exhaustion of administrative remedies is a condition precedent to filing a lawsuit. A stay of the lawsuit pending exhaustion does not satisfy the plain language of the statute. See McKinney. 3 11 F.3d at 1199. Total exhaustion of all claims is therefore contemplated before an action may even be filed in a federal court.

  As reflected in its title, the clear import of the PLRA is to deter meritless prisoner lawsuits and alleviate the caseload burden on federal courts. Accordingly, mandating "total exhaustion" would deter prisoners from filing mixed complaints. Upon dismissal of the entire mixed complaint, the prisoner could either: (1) file a new complaint to bring only the exhausted claims; or (2) exhaust all claims and then file a new (fully exhausted) complaint. Either way, having to "pay the full amount of a filing fee" twice — in accordance with 28 U.S.C. § 1915(b)(1) — encourages prisoners to determine before bringing suit whether all claims raised in a Section 1983 complaint are in fact exhausted. See Blackmon. 2004 WL 369883, at *4 ("If the only penalty for bringing a mixed complaint were dismissal of the unexhausted claims, there would be nothing to deter prisoners from continuing to bring these suits.") (citation omitted). Moreover, allowing a mixed complaint could result in an Page 6 unexhausted claim "holding up" the dismissal of a frivolous action of otherwise exhausted claims. See Smeltzer. 235 F. Supp. at 744 (citation omitted).

  Finally, the principals of comity dictate "total exhaustion" is the proper approach. Requiring total exhaustion will afford prison officials full opportunity to address prisoners' claims before they are raised in a federal court. By making total exhaustion the standard, federal courts will not only promote comity, but will reap the benefits of more focused complaints and more developed evidentiary records. See Scott v. Gardner. 287 F. Supp.2d 477, 486-87 (S.D.N.Y. 2003) (citing Hattley v. Goord, No. 02Civ.2339 (WHP) (RLE), 2002 WL 1700435, at *6 (S.D.N.Y. March 27, 2003)). See also McKinney. 311 F.3d at 1200 ("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.") (citing Porter v. Nussle, 534 U.S. 516, 524-25 (2002)).

  Based on the foregoing, this Court adopts the "total exhaustion" approach discussed above. Because Plaintiff's third claim is unexhausted, the entire action is DISMISSED without prejudice.



  For the reasons discussed above, Defendants' motion to dismiss is GRANTED. Plaintiff's Third Amended Complaint is DISMISSED without prejudice. The Clerk shall enter judgment accordingly.



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