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.
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
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 ...