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BROWN v. ALAMEIDA

United States District Court, N.D. California


May 28, 2004.

DARRYL EUGENE BROWN, Plaintiff(s),
v.
EDWARD ALAMEIDA, JR., et al. (Doc # 59) Defendant(s)

The opinion of the court was delivered by: CHARLES BREYER, District Judge

ORDER GRANTING MOTION TO DISMISS

Plaintiff, a prisoner currently incarcerated at Pelican Bay State Prison ("PBSP"), filed a pro se Second Amended Complaint under 42 U.S.C. § 1983 complaining about the conditions of his confinement while he was incarcerated at Salinas Valley State Prison in Soledad, California ("SVSP"). In nearly 50 pages, plaintiff details his almost daily incidents and occurrences at SVSP from June 2000 to December 2001, including disciplinary "write-ups," various placements in administrative segregation, deprivation of property, interference with the mail, threats, harassment and the like.

Per order filed on August 26, 2003, the court found that plaintiff's allegations relating to denial of due process in connection with disciplinary "write-ups" and placement in administrative segregation appear to state colorable claims for relief under § 1983 and ordered the named corresponding defendants served. All other claims were dismissed under the authority of 28 U.S.C. § 1915A(b). Aug. 26, 2003 Order at 2-3. Defendants now move for dismissal under Rule 12(b) of the Federal Rules of Civil Procedure on the ground that plaintiff did not exhaust available administrative remedies under 42 U.S.C. § 1997e(a) before he filed suit. Plaintiff did not file an opposition despite being granted three generous extensions of time to do so.

  DISCUSSION

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

  The State of California provides its prisoners 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). It also provides them the right to file appeals alleging misconduct by correctional officers. Id. § 3084.1(e). 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. 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). Id. at 1237-38.

  Nonexhaustion under § 1997e(a) is an affirmative defense. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir 2003). It should be treated as a matter of abatement and brought in an "unenumerated Rule 12(b) motion rather than [in] a motion for summary judgment." Id. (citations omitted). In deciding a motion to dismiss for failure to exhaust administrative remedies under § 1997e(a), the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. If the court concludes that the prisoner has not exhausted California's prison administrative process, the proper remedy is dismissal without prejudice. Id. at 1120.

  Here, defendants correctly raise nonexhaustion in an unenumerated motion to dismiss and argue that plaintiff's prisoner action should be dismissed because plaintiff failed to exhaust administrative remedies as to all cognizable claims before filing suit.

  Defendants note that plaintiff's allegations regarding his placement in administrative segregation concern two separate periods of time. The first alleged period runs from July 12, 2000 to August 28, 2000, and the second alleged period runs from June 29, 2001 to about two months later. In connection with the first period of time, plaintiff alleges four due process claims: (1) a few days before plaintiff was placed in administrative segregation on July 12, 2000, correctional sergeant Treadwell and correctional officer Paramo placed plaintiff on limited privilege status ("C" status) for his refusal to accept a cell-mate without providing plaintiff any procedural protection in violation of his due process rights; (2) on or about July 12, 2000, correctional sergeant Stevenson and associate warden Monteiro fabricated reasons to place plaintiff in administrative segregation after he argued with them about his refusal to double-cell in violation of plaintiff s due process rights; (3) on July 13, 2000, correctional captain P. Manderville (acting in concert with Monteiro) conducted an administrative segregation hearing at which plaintiff was denied an opportunity to present witnesses and testimony in violation of his due process rights; and (4) on July 21, 2000, Monteiro conducted a classification hearing at which plaintiff was denied an opportunity to present evidence, and after which Monteiro ordered plaintiff's continued placement in administrative segregation, in violation of plaintiff s due process rights.

  In connection with the second period of time during which plaintiff was placed in administrative segregation, plaintiff alleges two due process claims: (1) on June 29, 2001, correctional officer McGawen improperly placed plaintiff in administrative segregation after plaintiff simply argued with McGawen in violation of plaintiff s due process rights; and (2) on or about July 2, 2001, captain Basso conducted an administrative review hearing at which plaintiff was denied an opportunity to present evidence in violation of his due process rights.*fn1 Defendants have submitted evidence snowing that plaintiff exhausted two inmate appeals concerning alleged denials of due process for the time period covered in his Second Amended Complaint before he filed suit on July 9, 2002.*fn2 In Inmate Appeal No. 00-2066, plaintiff alleges that he was incorrectly placed on limited privilege status (or "C" status) on June 21, 2000, prior to his alleged placement in administrative segregation on July 12, 2000. And in Inmate Appeal No. 01-3030, plaintiff alleges that he was denied due process at a July 12, 2001 disciplinary hearing regarding a rules violation report dated June 8, 2001.

  Plaintiff has exhausted administrative remedies in connection with his claim of improper change in his privilege status on June 21, 2000, and with his claim of a deficient disciplinary hearing on July 12, 2001. (The latter claim does not appear in plaintiff's Second Amended Complaint.) None of the other due process claims in the Second Amended Complaint were exhausted before plaintiff filed suit, however. Plaintiff accordingly has presented a mixed complaint, with one due process claim apparently exhausted and all other due process claims not exhausted.

  The exhaustion requirement applies to all claims in a complaint; it is not enough to exhaust administrative remedies as to some claims and then use that exhaustion as a jurisdictional hook on which to hang unexhausted claims in a federal civil rights action. Plaintiff's instant prisoner action must be dismissed without prejudice because plaintiff did not exhaust all claims against all defendants before filing suit in federal court. See Graves v. Norris. 218 F.3d 884, 885 (8th Cir. 2000) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a) requires that available administrative remedies be exhausted as to all of the claims brought in a prisoner action); Rivera v. Whitman, 161 F. Supp.2d 337, 340-43 (D.N.J. 2001) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a), as well as the legislative intent and policy interests behind it, compel a "total exhaustion" rule). Accord Terrell v. Brewer. 935 F.2d 1015, 1018-19 (9th Cir. 1990) (in prisoner action brought under Bivens where only a portion of the claims had been exhausted, "the proper remedy [was] dismissal without prejudice"). This total exhaustion rule best promotes the purposes of the exhaustion requirement, which include allowing a prison to take responsive action, filtering out frivolous cases, and creating administrative records. See Porter v. Nussle. 534 U.S. 516, 523-25 (2002); Pogue v. Calvo, No. C 03-0803 VRW (PR), 2004 WL 443517, at *3 (N.D. Cal. Feb. 24, 2004); Rivera v. Hamlet. No. C 03-0962 SI (PR), 2003 WL 22846114, at *3 (N.D. Cal. Nov. 25, 2003).

  The complaint will be dismissed without prejudice to plaintiff filing a new action after he exhausts California's prison administrative process as to all claims or, alternatively, filing a new action containing only currently exhausted claims. CONCLUSION

  For the foregoing reasons, defendants' motion to dismiss for failure to exhaust administrative remedies (doc # 59) is GRANTED and the action is DISMISSED without prejudice.

  The clerk shall enter judgment in accordance with this order, terminate all pending motions and close the file.

  SO ORDERED.

  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 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 the action is DISMISSED without prejudice.


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