The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER OF DISMISSAL; DENYING APPLICATION TO PROCEED IN FORMA
PAUPERIS; DENYING APPOINTMENT OF COUNSEL
Plaintiff, an inmate at Pelican Bay State Prison, filed the
above-captioned civil rights complaint under 42 U.S.C. § 1983.
Plaintiff names two defendants: his roommate, Alexander Gee
("Gee"), and a Correctional Officer W. Owen ("Owen"). He alleges
that Gee has sexually harassed and threatened him, and that Owen
tried to make plaintiff fall while he was handcuffed to a waist
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.
See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally
construed. See Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 699 (9th Cir. 1988).
The complaint fails to state a claim against Gee because Gee is
not a state actor. To state a claim under § 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 color of state law." See West v. Atkins, 487 U.S. 42,
48 (1988). Plaintiff's complaint fails on the second of these
elements because the only defendant named in the complaint is a
private individual who does not act "under color of state law." A
person acts under color of state law if he "exercise[s] power
possessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law." Id.
at 49. A private individual, such as plaintiff's cellmate, does
not act under color of state law. See Gomez v. Toledo,
446 U.S. 635, 640 (1980). Simply put: there is no constitutional
right to be free from the infliction of deprivations by private
individuals. See Van Ort v. Estate of Stanewich, 92 F.3d 831,
835 (9th Cir. 1996). As the defendant in this case is not a state
actor, but rather a private individual, plaintiff may not pursue
any § 1983 claims against him. Accordingly, the claims against
defendant Gee are DISMISSED.
The complaint also fails with respect to defendant Owen, as the
complaint is premature. Plaintiff has recently written to the
Court indicating that his administrative grievance against Owen
"is still at the third level in Sacramento, California." 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." See 42 U.S.C. § 1997e(a). The exhaustion
requirement under § 1997e(a) is mandatory and not merely
directory. Porter v. Nussle, 122 S. Ct. 983, 988 (2002). All
available remedies must be exhausted; those remedies "need not
meet federal standards, nor must they be `plain, speedy, and
effective.'" See id. (citation omitted). Even when the
prisoner seeks relief not available in grievance proceedings, notably
money damages, exhaustion is a prerequisite to suit. See id.;
Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion is a
prerequisite to all prisoner lawsuits concerning prison life,
whether such actions involve general conditions or particular
episodes, and whether they allege excessive force or some other
wrong. See Porter, 122 S. Ct. at 992.
The State of California provides its prisoners and parolees 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). 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
("Director") in Sacramento, California. See 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).
See id. at 1237-38.
A concession to nonexhaustion is a valid ground for dismissal,
provided no exception to exhaustion applies. See Wyatt v.
Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). Here, plaintiff
concedes in his letter to the Court that he has not had a final
decision from the Director's level of review on his grievance
against defendant Owen. Such a decision is necessary in order to
satisfy the PLRA's exhaustion requirement. As it is clear from
plaintiff's letter that he has not completed all levels of
administrative appeal available to him, dismissal of his claims
against Owen without prejudice is appropriate.
For the foregoing reasons, plaintiff's claims against defendant
Gee are DISMISSED for failure to state a cognizable claim for
relief; plaintiff's claims against defendant Owen are DISMISSED
without prejudice to refiling after administrative remedies have
In light of this dismissal, the application to proceed in forma
pauperis is DENIED and no fee is due. Plaintiff's request for
appointment of counsel likewise is DENIED. There is no right to ...