The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER OF DISMISSAL FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket nos. 2, 5)
Plaintiff Bobby Lee, a prisoner of the State of California who is incarcerated at Folsom State Prison, 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 Monterey County. 28 U.S.C. §§ 84(a), 1391(b).
On June 23, 2003, Plaintiff was incarcerated at Salinas Valley State Prison (SVSP). On that date he was being transferred to a new cell. While moving his property to his new cell he heard gunshots and immediately threw himself down on the floor in a prone position. After several minutes he was removed from his cell by correctional officers and handcuffed. He was informed that a correctional officer had been assaulted and that he was being placed in administrative segregation. After questioning, Plaintiff and two other inmates were transferred that day to Corcoran State Prison and placed in administrative segregation. Plaintiff was held in administrative segregation for more than a year while charges of conspiring in the attempted murder of a correctional officer were referred to the District Attorney's office, despite Plaintiff's protestations that he knew nothing about the attack. In September, 2004, Plaintiff was transferred back to SVSP, and in November, 2004, he was transferred to Folsom State Prison. In his complaint, he seeks injunctive relief and damages for the filing of false charges against him, his alleged unlawful retention in administrative segregation and the confiscation of his property.
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:
(2) formal written appeal on a CDC 602 inmate appeal form,
(3) second level appeal to the institution head or ...