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
ORDER OF DISMISSAL
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
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 §
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.
JUDGMENT IN A CIVIL CASE
( ) Jury Verdict. This action came before the Court for a
trial by jury. The issues have been tried and the jury has rendered its
(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
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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