United States District Court, S.D. California
May 3, 2004.
MUBARAK MUBARAK, Plaintiff
CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants
The opinion of the court was delivered by: DANA M. SABRAW, District Judge
AMENDED ORDER: (1) ADOPTEVG IN PART
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; (2) GRANTING
DEFENDANTS' MOTION TO DISMISS; AND (3) DISMISSING ACTION
Currently pending before this Court is a motion by Defendants to
dismiss Plaintiff Mubarak Mubarak's Third Amended Complaint, pursuant to
Fed.R.Civ.P. 12(b). Because Plaintiff is a state prisoner bringing claims
for relief under 42 U.S.C. § 1983, the Prison Litigation Reform Act of
1997 ("PLRA"), applies to this case. The Court holds that the PLRA
requires "total exhaustion" of administrative remedies before bringing
suit. The Court also finds that Plaintiff has failed to exhaust his
available administrative remedies in relation to his third claim.
Consequently, the action is DISMISSED without prejudice. I.
FACTUAL AND PROCEDURAL SUMMARY
On March 6, 2003, Plaintiff Mubarak Mubarak, a state prisoner
proceeding pro se and in forma pauperis, filed his Third Amended Complaint
("TAC") pursuant to 42 U.S.C. § 1983, alleging civil rights violations
against Defendants. Plaintiff's first two claims concern events that
occurred on July 9, 2000, when Defendant Flores 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.
On August 19, 2003, Defendants responded with a Motion to dismiss the
TAC for failure to exhaust administrative remedies and to strike the TAC
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").
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. Originally, Plaintiff had
until October 24, 2003, to respond to this Order. Plaintiff-after
receiving two extensions on this deadline-responded on February 18,
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 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, injunctive
relief, and 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 TAC on February 18, 2004, Judge Stiven
recommended the Motion to strike the TAC 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, the pleadings,
and relevant authorities, the Court ADOPTS Judge Stiven's recommendation
regarding Plaintiff's failure to exhaust his administrative remedies for
his third claim. However, as to Judge Stiven's further conclusion that
Plaintiff be allowed to proceed with the remaining three claims, the
Court declines to follow this recommendation. The Court holds that the
PLRA requires "total exhaustion" of administrative remedies before
bringing suit. For this reason, the TAC 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.
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 totally 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. § 1997e(a). 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
unexhausted claims, i.e., a "mixed complaint."
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 filing
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 42 U.S.C. § 1997e(a). Defendants maintain
that strict adherence to this exhaustion requirement mandates an inmate
plaintiff exhaust all the claims he seeks to litigate before commencing
the action. According to Defendants, the Court must dismiss a mixed
complaint in its entirety.
Defendants ask this Court to follow the "total exhaustion" approach of
the Eighth Circuit in Graves v. Norris. 218 F.3d 884, 885 (8th Cir. 2000)
("plain language of § 1997e(a) requires that all available prison
grievance remedies must be exhausted as to all of the claims."). After
briefing in this matter concluded, the Tenth Circuit, in Ross v. County
of Bernalillo. No. 02-2337, 2004 WL 902322 (10th Cir. April 28, 2004),
followed the rationale set forth in Graves. See id. at *6 ("We agree that
the PLRA contains a total exhaustion requirement, and hold that the
presence of unexhausted claims in [plaintiff's] complaint required the
district court to dismiss his action in its entirety without
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. Dir. 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
This Court concludes the "total exhaustion" approach is supported by
the plain language 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
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) (contrasting § 1997e(c)(1)with § 1997e(c)(2)), abrogated on other
grounds by Ray v. Kertes. 285 F.3d 287, 293 n.6 (3rd Cir. 2003).
In a related context, the Ninth Circuit 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 noted that a "suit filed
by a prisoner before administrative remedies have been exhausted must be
dismissed; the district court lacks discretion to resolve the claim on
the merits, even if the prisoner exhausts intra-prison remedies before
judgment." Id. at 1200 (quoting Medina Claudio v. Rodriguez Mateo.
292 F.3d 31, 36 (1st Cir. 2002) (citation omitted)). Accordingly, the
court made clear that exhaustion of administrative remedies is a
prerequisite to filing a lawsuit. A stay of the suit pending exhaustion
does not satisfy the plain language of the statute. See McKinney. 311
F.3d at 1199. Total exhaustion of all claims is therefore contemplated
before a prisoner may file a Section 1983 action 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. To this end, 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 and 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). See also Ross. 2004 WL 902322, at *7 (noting that the
"policies underlying the PLRA point toward a requirement of total
exhaustion."). Moreover, allowing a mixed complaint could result in an
unexhausted claim "holding up" the dismissal of a frivolous action of
otherwise exhausted claims. See Smeltzer. 235 F. Supp. at 744 (citation
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.
CONCLUSION AND ORDER
For these reasons, Defendants' Motion to dismiss is GRANTED.
Plaintiff's Third Amended Complaint is DISMISSED without prejudice in its
entirety. The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
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