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United States District Court, N.D. California

May 13, 2004.

STEVEN V. BANKS, Plaintiff(s),
MICHAEL HENNESSEY, et al., Defendant(s)

The opinion of the court was delivered by: VAUGHN WALKER, District Judge


Plaintiff, a prisoner at the San Francisco County Jail, has filed a pro se complaint under 42 U.S.C. § 1983 challenging the jail's inmate account interest policy following the Ninth Circuit September 29, 2003 decision in Schneider v California Dep't of Corrections, 345 F.3d 716 (9th Cir 2003). Plaintiff seeks injunctive and monetary relief. He also seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915 and requests that the court excuse his obligation to exhaust available administrative remedies.

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 prisoner suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 US at 532.

  Nonexhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v Terhune, 315 F.3d 1108, 1119 (9th Or 2003). However, a complaint may be dismissed by the court for failure to exhaust if a prisoner "conce[des] to nonexhaustion" and "no exception to exhaustion applies." Id at 1120. Here, plaintiff concedes he did not exhaust the jail's available administrative remedies before filing suit, but argues that the exhaustion requirement should be excused because it is taking too long. Plaintiff's request is denied because the alleged delay of less than 60 days (he alleges he first filed a grievance by sending a letter to the sheriff on 11/3/03 and the complaint is signed on 12/24/03) does not constitute extraordinary circumstances which might compel that he be excused from the exhaustion requirement. Cf Booth, 532 US at 741 n6 (courts should not read "futility or other exceptions" into § 1997e(a)).

  Accordingly, plaintiff's request to proceed in forma pauperis (doc # 2) is DENIED and the complaint is DISMISSED without prejudice to refiling after exhausting San Francisco County Jail's administrative process. See Wyatt, 315 F.3d at 1120. It matters not that plaintiff may have exhausted available remedies after he filed this action. 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).

  The clerk shall enter judgment in accordance with this order and close the file. No fee is due.



  ( ) Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

  (X) Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS SO ORDERED AND ADJUDGED that in pursuant to the Order of Dismissal filed May 13, 2004 Judgment is entered


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