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August 9, 2004.

J.S. WOODFORD; et al., Defendants.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

Cristhian A. Monterroso, a death row inmate at San Quentin State Prison, filed a pro se civil rights action under 42 U.S.C. § 1983. The court reviewed the complaint pursuant to 28 U.S.C. § 1915A and ordered it served on several defendants. Defendants now move to dismiss the complaint, arguing that plaintiff failed to exhaust administrative remedies before filing this action. The court finds that the § 1983 claims must be dismissed because Monterroso did not exhaust his administrative remedies before bringing the action. With the dismissal of the § 1983 claims, there remains no other federal question pending; the court will decline to exercise supplemental jurisdiction and will remand the case back to state court so that Monterroso may litigate his remaining state law claims.


  Monterroso filed this action in the Marin County Superior Court and defendants removed it to federal court based on the existence of claims under 42 U.S.C. § 1983 in the complaint. Monterroso alleged in his complaint that on April 25, 2002, he was placed on "property control" for 90 days before a hearing on a rule violation report occurred. "Property control" status meant that all personal property was removed from his cell. Monterroso claimed that this violated his Eighth Amendment right to be free from cruel and unusual punishment. Monterroso also alleged that he was not afforded the safeguards required by the Fourteenth Amendment Due Process Clause before this punishment was imposed on him. The court found these allegations, liberally construed, stated cognizable claims for relief under 42 U.S.C. § 1983 for Eighth Amendment and Due Process Clause violations.

  Defendants now move to dismiss, arguing that Monterroso did not exhaust his administrative remedies before filing this action. Monterroso has opposed the motion.


  A. The Procedural Mechanism For Raising Exhaustion Problems

  A prisoner's failure to exhaust administrative remedies is a matter in abatement. Defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 124 S.Ct. 50 (2003). In Wyatt v. Terhune, 315 F.3d at 1119, the Ninth Circuit explained that the proper way to establish nonexhaustion was by a unenumerated Rule 12(b) motion rather than in a motion for summary judgment.*fn1 This was so because the "failure to exhaust nonjudicial remedies that are not jurisdictional should be treated as a matter in abatement." Id. The summary judgment procedure is a decision on the merits while a dismissal for failure to exhaust is not on the merits. "In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20, citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988). Ritza explained that "[t]he distinction between summary judgment and dismissal for matters in abatement bears on the district court's authority to resolve factual disputes and thus affects the standard of review to be applied by this court." Id. at 369. The court can decide factual issues in a jurisdictional or related type of motion because there is no right to a jury trial as to that portion of the case, unlike the merits of the case (where there is a right to a jury trial). See id. Wyatt and Ritza allow this court to resolve factual disputes, but only with regard to the exhaustion issue.

  B. Exhaustion

  "No 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). The State of California provides its inmates and parolees the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." See Cal. Code Regs. tit. 15, § 3084.1(a). 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. See id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997).

  Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Porter v. Nussle, 122 S.Ct. 983, 988 (2002); Booth v. Churner, 532 U.S. 731, 739-40 & n. 5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id. at 741. That the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See id. at 737; see also Porter, 122 S.Ct. at 988 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records).

  Defendants present evidence that there is no record of any inmate appeal at the highest level from Monterroso concerning the subject matter of his complaint. Monterroso does not dispute this. The administrative appeals Monterroso filed did not raise the same claims as those in his complaint. His administrative appeal No. 02-1419 concerned the deprivation of legal property and requested that inmates' "constitutional protections to legal documents, legal materials, access to attorneys and access to the courts be respected and adhered to by A/C and San Quentin staff" and that a system be set up to allow inmates access to all legal documents. Grannis Decl., Exh. B. This is not the same as the claims raised in the complaint that due process and Eighth Amendment rights were violated by the restrictions on all property (without any particular emphasis on legal property).

  Monterroso states that he did present his claim to the California State Board of Control. That does not matter, however. Presentation of a claim to the State Board of Control does not exhaust remedies within the prison appeal system because the State Board of Control is not part of the prison appeal system. In passing section 1997e, while "Congress certainly intended to require prisoners to exhaust available administrative grievance procedures, there is no indication that it intended prisoners also to exhaust state tort claim procedures." Rumbles v. Hill, 182 F.3d 1064, 1070 (9th Cir. 1999), overruled on other grounds by Booth v. Churner, 532 U.S. 731.


  Defendants' motion to dismiss is GRANTED for failure to exhaust administrative remedies as to all § 1983 claims against all defendants before filing this action. (Docket # 13.) The claims asserted under 42 U.S.C. § 1983 are dismissed without prejudice to plaintiff refiling a new federal action after he exhausts administrative remedies. With the dismissal of the § 1983 claims, there remains no other federal question pending; the court declines to exercise supplemental jurisdiction. The action is remanded to the Marin County Superior Court for resolution of the remaining state law claims. The clerk shall send the necessary materials to the ...

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