Opinion
No. C 99-4190 MMC (PR)
April 3, 2002
ORDER OF DISMISSAL
Plaintiff, a prisoner at the Correctional Training Facility in Soledad, California, has filed a second amended complaint under 42 U.S.C. § 1983 against seven different prison officials. Plaintiff claims that defendants violated his constitutional rights by temporarily removing his legal papers, a manuscript, and photographs from his cell, and by failing to process confidential mail to a private investigator who was assisting him with a habeas petition in the state courts. Plaintiff seeks declaratory and monetary relief. The complaint, however, clearly indicates that plaintiff has not exhausted administrative remedies with respect to all of his claims.
Plaintiff's sua sponte filing of his first amended complaint is permitted. See Fed.R.Civ.P. 15(a).
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 "[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 (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). 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 n. 5.
Here, plaintiff describes and attaches the administrative grievances he has filed regarding his claims. See Exhs. D, G, J, L, N. Only one of these grievances, pertaining to the confiscation of the legal materials, manuscript and photographs by defendants J.A. Soares and Gary A. Craft, has been pursued to the Director's level of review. See Exh. L. Plaintiff did not pursue grievances beyond the second level regarding his claims that defendant A. Griffin failed to process his legal mail. See Exh. J, N. Moreover, plaintiff has filed no grievances against the remaining four defendants, Linda Melching, J. Solis, Linda Clarke and N.L. Joseph-Scales. Section 1997e(a) requires that plaintiff present all of his claims to the Director's level of review before pursuing them in federal court. See Graves v. Norris, 218 F.3d 884, 885-86 (8th Cir. 2000); see also Rivera v. Whitman, 161 F. Supp.2d 337, 340-43 (D.N.J. 2001) (finding plain language of § 1997e(a), as well as legislative intent and policy interests behind it, compel "total exhaustion" rule). An action containing both exhausted and unexhausted claims at the time of filing should be dismissed without prejudice. See Graves, 218 F.3d at 885-86 (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims); accord Terrell v. Brewer, 935 F.2d 1015, 1018-19 (9th Cir. 1990) (holding in prisoner action brought under Bivens where only a portion of the claims had been exhausted, "the proper remedy [was] dismissal without prejudice").
Although the second grievance against Griffin was returned as duplicative at the informal level, nothing in the regulations, see 15 Cal. Code Regs. §§ 3084.1-3084.7, precludes proceeding to the first, second and Director's levels where the informal grievance is rejected as duplicative. Section 1997e requires that plaintiff at least attempt to present his claims to the Director's level of review.
Because the allegations and exhibits in plaintiff's second amended complaint indicate that plaintiff has not pursued his administrative remedies to the Director's level of review with respect to all of the claims he wishes to present in this court, it is clear from the face of the second amended complaint that plaintiff has not satisfied the exhaustion requirement. Cf. Wyatt v. Terhune, No. 00-16568, slip op. 2397, 23413-14 (9th Cir. Feb. 12, 2002) (finding dismissal based on exhaustion not appropriate where unclear from complaint whether claims had been exhausted).
Accordingly, the complaint is hereby DISMISSED without prejudice to refiling after plaintiff exhausts all available administrative remedies.
All pending motions are terminated and the Clerk shall close the file.