Opinion
No. C 01-0305 MMC (PR)
January 8, 2002
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Docket No. 13)
Plaintiff, a California prisoner proceeding pro se, filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983 against various prison officials. After reviewing the complaint, the Court found plaintiff's allegations that prison officials authorized and used excessive force on him while performing a cell extraction on March 21, 1999 stated a cognizable claim for the violation of his Eighth Amendment rights. The Court ordered the complaint served on defendants and required them to file a dispositive motion, or indicate that such a motion was not applicable, on or before October 19, 2001. Defendants filed a timely motion to dismiss the complaint for failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a). Plaintiff has filed a timely opposition and defendants have timely replied.
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). 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. See Barry v. Ratelle, 985 F. Supp. 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. The new exhaustion requirement under § 1997e(a) is mandatory and not merely directory. See Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997); see also Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998) (holding 1997e requires allegation of exhaustion with "sufficient specificity").
In his complaint, plaintiff states that he has not exhausted his administrative remedies because he only seeks money damages in this action. Exhaustion is not excused on that basis. See Booth v. Churner, 121 S.Ct. 1819, 1825 (2001)("We think that Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures."). In his opposition to defendants' motion, plaintiff argues that exhaustion should be excused in this case because he filed his complaint prior to the decision in Booth, at a time when exhaustion was excused for California prisoners who only sought money damages, see Rumbles v. Hill, 182 F.3d 1064, 1067 (9th Cir. 1999),overruled by Booth v. Churner, 121 S.Ct. 1819 (2001). When the Supreme Court applies a rule of federal law to the parties before it, as it did in Booth, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate the announcement of the rule. See Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 94-99 (1993); compare Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994) (determining whether federal statute, as opposed to federal court decision, applies retroactively to events occurring before enactment of statute). As a result, the holding inBooth applies to this action and § 1997e(a) requires that plaintiff pursue his claims to the Director's level of review before raising those claims in a § 1983 action in federal court.
In his opposition and accompanying affidavit, plaintiff asserts that he did not have sufficient time to oppose defendants' motion because the motion was "premature." The motion was not premature, as it was filed in accordance with the schedule set forth by the Court, and plaintiff was not prevented from opposing the motion, as he was granted thirty days to do so. Moreover, the Court informed plaintiff that if he needed more time to file an opposition, his remedy was to request an extension of time, which he elected not to do. In any event, plaintiff does not explain, and the Court cannot surmise, what plaintiff would have done to establish exhaustion had he been given more time to file an opposition.
In light of the foregoing, defendants' motion to dismiss is GRANTED. This action is DISMISSED without prejudice to refiling after plaintiff has exhausted his administrative remedies.
This order terminates docket number 13 and any other pending motions.
The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
[X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED defendants' motion to dismiss is GRANTED. This action is DISMISSED without prejudice to refiling after plaintiff has exhausted his administrative remedies.