The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER GRANTING MOTION TO DISMISS AND REMANDING ACTION TO STATE
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.
"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 ...