November 1, 2013
DONALD W. CALKINS, Plaintiff,
KEVIN CHAPPEL, Defendant.
ORDER OF DISMISSAL INTRODUCTION
JACQUELINE SCOTT CORLEY, Magistrate Judge.
Plaintiff, a California prisoner, filed this pro se civil rights complaint under 42 U.S.C. § 1983 seeking improved his medical needs. His application to proceed in forma pauperis is granted in a separate order. For the reasons explained below, the complaint is dismissed without prejudice to Plaintiff returning to federal court after he has exhausted his administrative remedies.
STANDARD OF REVIEW
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted, " or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only give the defendant fair notice of what the.... claim is and the grounds upon which it rests." Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted). Although in order to state a claim a complaint "does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two 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).
Section 1997e of Title 42 of the United States Code provides 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). Compliance with the exhaustion requirement is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). The administrative remedies need not meet federal standards, nor need they be "plain, speedy and effective." Id. Although nonexhaustion under Section 1997e(a) is an affirmative defense, a prisoner's concession to nonexhaustion is a valid ground for dismissal. Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). Accordingly, a claim may be dismissed without prejudice if it is clear from the pleadings that the prisoner concedes that he did not exhaust administrative remedies. Ibid.
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." 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. 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). Id. at 1237-38.
Plaintiff states in his complaint that he only filed an administrative appeal regarding his claims at the informal level, and that he has not appealed to the highest level of appeal available to him. (Complaint at 1-2.) He states that his claims has been rejected, and that he is "in the process" of presenting his claim for review through the prison's grievance procedures. ( Id. at 2.) An action must be dismissed unless the prisoner exhausted his available administrative remedies before he or she filed suit. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). As Plaintiff has not presented grounds for excusing the exhaustion requirement, and he has clearly pleaded that he has not exhausted all of his available administrative remedies, his complaint must be dismissed.
This case is DISMISSED without prejudice to Plaintiff bringing his claims in a new case after he has exhausted his available administrative remedies.
The Clerk shall enter judgment and close the file.
IT IS SO ORDERED.