United States District Court, E.D. California
ORDER AND FINDINGS & RECOMMENDATIONS
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
pursuant to 28 U.S.C. § 1915. This matter proceeds on
plaintiff’s June 4, 2015, complaint, which was found to
state an Eighth Amendment sexual harassment claim against
defendant Jenkins. Now pending is defendant’s motion to
dismiss for failure to exhaust administrative remedies.
Plaintiff opposes the motion.
Prison Litigation Reform Act (“PLRA”) stipulates,
“No 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). Therefore, prisoners are required to exhaust
all available administrative remedies prior to filing suit.
Jones v. Bock, 549 U.S. 199, 211 (2007). This
requirement is mandatory regardless of the relief sought.
See Booth v. Churner, 532 U.S. 731, 741 (2001)
(overruling Rumbles v. Hill, 182 F.3d 1064 (9th Cir.
1999)). Because exhaustion must precede the filing of the
complaint, compliance with § 1997e(a) is not achieved by
exhausting administrative remedies while the lawsuit is
pending. See McKinney v. Carey, 311 F.3d 1198, 1199
(9th Cir. 2002).
prison inmate in California satisfies the administrative
exhaustion requirement by following the procedures set forth
in §§ 3084.1-3084.8 of Title 15 of the California
Code of Regulations. In California, inmates “may appeal
any policy, decision, action, condition, or omission by the
department or its staff that the inmate...can demonstrate as
having a material adverse effect upon his or her health,
safety, or welfare.” Cal. Code Regs. tit. 15, §
3084.1(a). The inmate must submit their appeal on the proper
form, and is required to identify the staff member(s)
involved as well as describing their involvement in the
issue. See Cal. Code Regs. tit. 15, §
3084.2(a). These regulations require the prisoner to proceed
through three levels of appeal. See Cal. Code Regs.
tit. 15, §§ 3084.1(b), 3084.2, 3084.7. A decision
at the third formal level, which is also referred to as the
director's level, is not appealable and concludes a
prisoner's departmental administrative remedy. See
are not required to specially plead or demonstrate exhaustion
in their complaints.” Jones, 549 U.S. at 216.
The PLRA's exhaustion requirement is not jurisdictional;
it creates an affirmative defense that defendants must plead
and prove. Id. However, “in those rare cases
where a failure to exhaust is clear from the face of the
complaint, ” dismissal for failure to state a claim is
appropriate, even at the screening stage. Albino v.
Baca, 747 F.3d 1162, 1169 (9th Cir. 2014). See also
Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003)
(stating that “[a] prisoner’s concession to
nonexhaustion is a valid ground for dismissal”),
overruled on other grounds by Albino, 747 F.3d at
1166; Sorce v. Garikpaetiti, 2014 WL 2506213 (S.D.
Cal. June 2, 2014) (relying on Albino and dismissing
the complaint on screening because “it is clear from
the face of [plaintiff's] pleading that he has conceded
that he failed to exhaust all available administrative
remedies ... before he commenced this action”).
moves to dismiss this action because plaintiff’s
complaint demonstrates that he has not yet exhausted his
grievance concerning the issue underlying this action.
Indeed, in the “Exhaustion of Administrative
Remedies” portion of the form complaint filed by
plaintiff, he states that his grievance is “Still
Pending” at the third formal level of review. Compl. 2
(ECF No. 1). The attachments to plaintiff’s opposition
further demonstrate that plaintiff has not exhausted his
administrative remedies: plaintiff submits two second level
responses for separate grievances concerning
defendant’s conduct, one dated June 16, 2015, and one
dated July 22, 2015, nearly two weeks and 1.5 months,
respectively, after plaintiff initiated this action.
See Pl.’s Opp’n Ex. II, ECF No. 36 at
essentially conceded that his grievance has not yet been
exhausted, plaintiff asserts a number of arguments in
opposition to defendant’s motion. He argues first that
dismissal is inappropriate because exhaustion is not a
pleading requirement. While true, see Jones, 549
U.S. at 216, the fact remains that plaintiff did raise the
issue in his complaint, and the Ninth Circuit has explicitly
held that “[a] prisoner’s concession to
nonexhaustion is a valid ground for dismissal.”
Wyatt, 315 F.3d at 1120.
next argues that a prisoner does not need to exhaust his
administrative remedies when he seeks money damages only.
This argument has long been foreclosed by Booth, 532
U.S. at 741, which held that a prisoner must exhaust his
administrative remedies so long as some remedy
remains available. Since plaintiff does not allege that no
other form of relief was available to him in the
administrative process, this argument is rejected.
plaintiff argues that a stay of this case is appropriate
pending exhaustion. The exhaustion requirement, however, is
mandatory, and this court cannot stay this action to provide
plaintiff an opportunity for exhaustion after litigation has
begun. McKinney, 311 F.3d at 1200.
on plaintiff’s concession of nonexhaustion, which is
clear and unequivocal on the face of the complaint, and in
the absence of any applicable exception to the exhaustion
requirement, the court finds plaintiff’s case must be
dismissed for failing to state a claim upon which any relief
may be granted. Jones, 549 U.S. at 215; 28 U.S.C.
§ 1915A(b)(1). The “exhaustion requirement does
not allow a prisoner to file a complaint addressing
non-exhausted claims.” Rhodes v. Robinson, 621
F.3d 1002, 1004 (9th Cir. 2010) (citing McKinney,
311 F.3d at 1199).
the court typically grants leave to amend liberally in a pro
se cases, his clearly conceded failure to exhaust is not a
pleading defect that could be cured by the allegation of
additional facts. See Lopez v. Smith, 203 F.3d 1122,
1127 (9th Cir. 2000) (en banc); Saul v. United
States, 928 F.2d 829, 843 (9th Cir. 1991) (“A
district court does not err in denying leave to amend where
the amendment would be futile.”).
IT IS HEREBY ORDERED that the Clerk of Court shall assign a
district judge to this case; and IT IS HEREBY RECOMMENDED
1. Defendant’s May 9, 2016, motion to dismiss (ECF No.
34) be granted; and
2. This action be dismissed without prejudice for failure to