The opinion of the court was delivered by: CHARLES BREYER, District Judge
ORDER GRANTING MOTION TO DISMISS (Doc # 33)
Plaintiff, a prisoner at San Quentin State Prison ("SQSP"),
filed a pro se civil action for damages in the Superior Court of
the State of California in and for the County of Marin alleging
various violations of his federal and state rights. Defendants
removed the action to this Court on December 3, 2003, pursuant to
28 U.S.C. § 1441(b).
Per order filed on October 27, 2004, the court found that
plaintiff's First Amended Complaint for damages under
42 U.S.C. § 1983 alleging that correctional officers O. Nollette and J. Van
Blarcom violated plaintiff's First Amendment rights by filing
false charges against him in retaliation for his filing prison
grievances stated a cognizable § 1983 retaliation claim for
damages, when liberally construed, and ordered the United States Marshal
to serve these two defendants. Defendants now move for dismissal
under Rule 12(b) of the Federal Rules of Civil Procedure on the
ground that plaintiff did not exhaust available administrative
remedies under 42 U.S.C. § 1997e(a) before he filed suit.
Plaintiff has filed an opposition and defendants have filed a
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." 42 U.S.C. § 1997e(a). Although once
within the discretion of the district court, exhaustion in
prisoner cases covered by § 1997e(a) is now mandatory. Porter v.
Nussle, 534 U.S. 516, 524 (2002). All available remedies must
now be exhausted; those remedies "need not meet federal
standards, nor must they be `plain, speedy, and effective.'"
Id. (citation omitted). Even when the prisoner seeks relief not
available in grievance proceedings, notably money damages,
exhaustion is a prerequisite to suit. Id.; Booth v. Churner,
532 U.S. 731, 741 (2001). Similarly, exhaustion is a prerequisite
to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether they
allege excessive force or some other wrong. Porter,
534 U.S. at 532.
The State of California provides its prisoners 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).
It also provides them the right to file appeals alleging
misconduct by correctional staff. Id. § 3084.1(c). 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 ("CDC"). 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).
Id. at 1237-38.
Nonexhaustion under § 1997e(a) is an affirmative defense.
Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). It
should be treated as a matter of abatement and brought in an
"unenumerated Rule 12(b) motion rather than [in] a motion for
summary judgment." Id. (citations omitted). In deciding a
motion to dismiss for failure to exhaust administrative remedies
under § 1997e(a), the court may look beyond the pleadings and
decide disputed issues of fact. Id. at 1119-20. If the court
concludes that the prisoner has not exhausted California's prison
administrative process, the proper remedy is dismissal without
prejudice. Id. at 1120.
Here, defendants correctly raise nonexhaustion in an
unenumerated motion to dismiss and argue that plaintiff's
prisoner action should be dismissed without prejudice because
plaintiff failed to exhaust his retaliation claim through the
final Director's level of review before filing suit. The Court
Plaintiff alleges that on October 26, 2002, Nollette and Van
Blarcom filed a rules violation report ("RVR") against him in
retaliation for his having exercised his First Amendment right to
file prison grievances against them. (In those earlier
grievances, plaintiff had alleged that defendants had violated
his right to wear his religious headgear in the prison visiting
room.) In order to have satisfied the exhaustion requirement in connection with his
retaliation claim, plaintiff must have (1) filed an appeal
alleging retaliation on or after October 26, 2002 (the date of
the alleged retaliatory filing of the RVR) and (2) exhausted the
appeal through the final Director's level of review before
September 8, 2003 (the date plaintiff filed suit in state
superior court). A review of the record, shows that plaintiff did
not exhaust his retaliation claim before he filed suit.
During the time period in question, plaintiff filed ten 602
appeals at SQSP. Three appeals related to a funds issue, two to a
disciplinary issue, two to a case information and records issue,
one to a medical issue, one to an ADA issue and one to a visiting
issue. Plaintiff suggests that the latter pertained to the
retaliation claim at issue. Not so. The appeal relating to a
visiting issue, Appeal Log No. SQ 02-03237, alleges that on
September 21, 2002, August 8, 2002, and June 14, 2002, Nollette
and officer Porton "openly engaged in racial and religious
harassment." This appeal relates to events that occurred prior
to the alleged October 26, 2002 retaliatory filing of the RVR at
issue here. It does not satisfy the exhaustion requirement in
connection with plaintiff's retaliation claim. Cf. Butler v.
Rianda, 397 F.3d 1181, 1183 (9th Cir. 2005) (California prisoner
need not identify defendants in his prison appeals, but must
allege sufficient facts to identify claims). None of the ten
appeals filed during the relevant time period alleges facts that
would give prison officials notice of plaintiff's instant
retaliation claim and therefore fail to satisfy § 1997e(a)'s
Plaintiff's prisoner complaint must be dismissed without
prejudice to refiling after exhausting California's prison
administrative process. See McKinney v. Carey, 311 F.3d 1198,
1199-01 (9th Cir. 2002) (action must be dismissed without
prejudice unless prisoner exhausted available administrative
remedies before he filed suit, even if prisoner exhausts while
the suit is pending). CONCLUSION
For the foregoing reasons, defendants' motion to dismiss (doc #
33) for failure to exhaust administrative remedies is GRANTED and
the action is DISMISSED without prejudice.
The clerk shall enter judgment in accordance with this order,
terminate all pending motions ...