Opinion
No. C 01-2603 VRW (PR)
July 20, 2001
ORDER OF DISMISSAL
Plaintiff, a State of California prisoner incarcerated at Salinas Valley State Prison, has filed a civil rights complaint under 42 U.S.C. § 1983 challenging the conditions of his confinement. He seeks damages and injunctive relief, and leave to proceed in forma pauperis under 28 U.S.C. § 1915 (doc #2). Plaintiff has not exhausted California's prison administrative process, however.
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). They may even file appeals alleging misconduct by correctional officers. See id § 3084.1(e).
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. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (SD 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.
"Congress has mandated exhaustion . . . regardless of the relief offered through administrative procedures." Booth v. Churner, 121 S Ct 1819, 1825 (2001). A prisoner "seeking only money damages must complete a prison administrative process" that, like California's prison administrative process, "could provide some sort of relief on the complaint stated, but no money." Id at 1821.
Courts do not have discretion under § 1997e(a) to excuse exhaustion when it would not be appropriate and in the interests of justice. Id at 1825 n5. Nor should they read "futility or other exceptions" into § 1997e(a). See id at 1825 n6.
Plaintiff has not exhausted available administrative remedies under 42 U.S.C. § 1997e(a) because he has not exhausted California's prison administrative process through the Director's level of review. He alleges that he appealed to the second level of review just on June 26, 2001. Nor has plaintiff presented any extraordinary circumstances which might compel that he be excused from complying with § 1997e(a). Accordingly, plaintiff's request to proceed in forma pauperis (doc #2) is DENIED and the complaint is DISMISSED without prejudice to refiling after exhausting California's prison administrative process. See White v. McGinnis, 131 F.3d 593, 595 (6th Cir 1997) (affirming district court's sua sponte dismissal without prejudice for failure to exhaust administrative remedies).
The Clerk shall close the file.