Opinion
No. C 01-4888 MMC
Febuary 21, 2002
ORDER OF DISMISSAL
Plaintiff, a California prisoner, filed a civil rights complaint under 42 U.S.C. § 1983 alleging constitutional violations by officials of San Quentin State Prison. Plaintiff also seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915. Pursuant to an initial order by the Court, plaintiff has timely filed an amended complaint. It is clear from plaintiff's amended complaint that he has not exhausted available administrative remedies through the Director's level of review pursuant to California Code of Regulations title 15, section 3084.5.
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide that "JIn]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. 1235, 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 exhaustion requirement under § 1997e(a) is mandatory and not merely directory. 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."); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997). Moreover, plaintiff must plead that he has exhausted his administrative remedies. See Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998) (holding 1997e requires allegation of exhaustion with "sufficient specificity"). Plaintiff states that he has not appeaLed to the highest level of administrative appeal available to him. He states that he filed an informal grievance and appealed it to the first formal level but that he did not proceed to the second level or to the Director's level of review. See First Am. Complaint at 4-5. Plaintiff explains that he received rio response from the first formal level. The lack of response at the first formal level, however, does not mean plaintiff cannot proceed to file grievances at the second and Director's levels. Nothing in the regulations, sge 15 Cal. Code Regs. §§ 3084.1-3084.7, precludes proceeding to the second and Director's levels where there has not been a timely response by prison officials at the first formal level. Section 1997e(a) requires that plaintiff at least attempt to present his claims to the Director's level of review before raising them in a § 1983 action in federal court.
Indeed, the regulations indicate that in certain instances the first formal level is bypassed and no decision is rendered at that level. See 15 Cal. Code Regs. § 3084.5(b) (listing circumstances where first formal level may be bypassed).
Because plaintiff states in his amended complaint that he has not pursued his claims to the Director's level of review, it is clear from face of the amended complaint that plaintiff has not exhausted his state court remedies. Accordingly, the complaint is DISMISSED without prejudice to refiling after plaintiff exhausts all available administrative remedies. Cf. W att v. Terhune, No. 00-16568, slip op. 2397, 23413-10 (9th Cir. Feb. 12, 2002) (finding dismissal based on exhaustion not appropriate where it was not clear from the allegations in the complaint that claims had not been exhausted). In light of this dismissal, leave to proceed in forma pauperis is DENIED.
This order terminates docket number 2.
The Clerk shall close the file.
IT IS SO ORDERED