United States District Court, N.D. California
ORDER OF DISMISSAL
THELTON E. HENDERSON, District Judge.
Plaintiff James George Stamos, Jr., an inmate at California State Prison-Corcoran (CSP-COR), has filed a pro se complaint under 42 U.S.C. § 1983 against staff at Salinas Valley State Prison (SVSP), where Plaintiff was previously incarcerated. Plaintiff alleges that he was denied procedural due process at a disciplinary hearing arising from charges that he committed battery on a peace officer at SVSP. Plaintiff has not exhausted California's prison administrative process, however.
The Prison Litigation Reform Act of 1995 (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). Under this section, an action must be dismissed unless the prisoner exhausted his available administrative remedies before he filed suit. See McKinney v. Carey , 311 F.3d 1198, 1199 (9th Cir. 2002). "[T]he PLRA's exhaustion requirement applies 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 v. Nussle , 534 U.S. 516, 532 (2002). Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner , 532 U.S. 731, 739-40 & n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id. at 741. PLRA's exhaustion requirement requires "proper exhaustion" of available administrative remedies. Woodford v. Ngo , 548 U.S. 81, 94 (2006). The purposes of the exhaustion requirement include allowing the prison or jail to take responsive action, filtering out frivolous cases and creating an administrative record. See Porter , 534 U.S. at 525.
The State of California provides its prisoners the right to appeal administratively "any policy, decision, action, condition, or omission by the [CDCR] or its staff that the inmate... can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." 15 C.C.R. § 3084.1(a). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal review, submitted on a CDC 602 inmate appeal form; (2) first formal level appeal, to an institution appeals coordinator; (3) second formal level appeal, to the institution warden; and (4) third formal level appeal, to the Director of the CDCR. See 15 C.C.R. § 3084.7; Brodheim v. Cry , 584 F.3d 1262, 1264-65 (9th Cir. 2009). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). Harvey v. Jordan , 605 F.3d 681, 683 (9th Cir. 2010).
Typically, a defendant must produce evidence proving failure to exhaust in a motion for summary judgment under Federal Rule of Civil Procedure 56. Albino v. Baca , 747 F.3d 1162, 1166 (9th Cir. 2014). However, a complaint may be dismissed by the court for failure to exhaust if a prisoner "conce[des] to nonexhaustion" and "no exception to exhaustion applies." Wyatt v. Terhune , 315 F.3d 1108, 1120 (9th Cir. 2003) (overruled on other grounds by Albino, supra).
Here, Plaintiff concedes he did not exhaust available administrative remedies through the Director's level of review before filing suit. Specifically, Plaintiff states that he filed an appeal at the Director's level on January 16, 2014 but that the appeal remains pending. (Amended Compl. at 2.) Plaintiff claims that exhaustion should not be required because the appeal system is inadequate. (See id.) Not so. See Booth , 532 U.S. at 741 n.6 (courts should not read "futility or other exceptions" into section 1997e(a)).
Accordingly, the complaint is DISMISSED without prejudice to refiling after exhausting California's prison administrative process. See McKinney , 311 F.3d at 1199-1201. If Plaintiff has not received a Director's level decision by January 1, 2015, he may move to reopen this action.
The Clerk shall terminate all pending motions, enter judgment, ...