The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER OF DISMISSAL FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket no. 6)
Plaintiff Ricky Garcia, a prisoner of the State of New Mexico who is incarcerated at Pelican Bay State Prison (PBSP) under the authority of the Western Interstate Corrections Compact (WICC), has filed a civil rights action pursuant to 42 U.S.C. § 1983 in which he seeks leave to proceed in forma pauperis. Venue is proper in this district because the acts complained of occurred, and the named Defendants reside, in Del Norte County. 28 U.S.C. §§ 84(a), 1391(b).
In 1981 Plaintiff was convicted in New Mexico of the murder of a correctional officer and was sentenced to death. In 1986 his death sentence was commuted by the governor of New Mexico. In 1994 Plaintiff was transferred to PBSP pursuant to the WICC. He was placed into administrative segregation in the Security Housing Unit (SHU) on an indeterminate basis and has remained there ever since. Plaintiff maintains that his placement in the SHU is unfounded because he is not a gang member and has suffered no disciplinary measures warranting an indefinite SHU term. Rather, he maintains that his housing status is in retaliation for him having murdered a correctional officer. He also maintains that the conditions of confinement in the SHU are physically and psychologically debilitating. He alleges the violation of his Fourteenth Amendment right to due process, his Eighth Amendment right to be free from cruel and unusual punishment, and his State created liberty interest in being housed in compliance with the applicable New Mexico Department of Corrections regulations. He seeks injunctive relief, including a temporary restraining order, and damages.
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law. West v. Atkins, 487 U.S. 42, 48 (1988). "'[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Terracom v. Valley National Bank, 49 F.3d 555, 558 (9th Cir. 1995) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
EXHAUSTION OF ADMINISTRATIVE REMEDIES
The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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). The exhaustion requirement is mandatory. Wyatt v. Terhune, 315 F.3d 1108, 1117 n.9 (9th Cir.), cert. denied, 124 S.Ct. 50 (2003). While nonexhaustion under § 1997e(a) is an affirmative defense, a prisoner's concession to nonexhaustion is a valid ground for dismissal. Id. at 119-20. Accordingly, the court may dismiss a claim without prejudice if it is clear from the record that the prisoner has conceded that he did not exhaust administrative remedies. See id.
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). It also provides its inmates the right to file administrative appeals alleging misconduct by correctional officers. See 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. See id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the administrative remedies exhaustion requirement under § 1997e(a). See id. at 1237-38.
Plaintiff states that he has exhausted his administrative remedies as follows:
-- An administrative appeal filed on February 24, 2004, following a 180-day classification review from which he maintains he was "run off" by Defendants. This appeal was given log number C-04-00626 and was denied at the second level of review. According to Plaintiff, the reason given for denial of the appeal was that Plaintiff had raised the same issues in his ...