Opinion
No. C 01-2797 CRB (PR)
July 25, 2001
ORDER OF DISMISSAL (Doc # 2)
Plaintiff, a state prisoner incarcerated at California State Prison, Corcoran, has filed a civil rights complaint for damages under 42 U.S.C. § 1983 alleging that Correctional Officer G. Cortez subjected plaintiff to cruel and unusual punishment when Cortez used pepper spray against plaintiff. Plaintiff also seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915 (doc # 2). He 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 (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.
Plaintiff concedes he has not appealed to the "highest level of appeal available" to him, but argues that he need not do so because he seeks only money damages and the prison administrative process "can't provide that." Unfortunately for plaintiff, the Supreme Court recently made clear that "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.
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. Nor has he presented any extraordinary circumstances which might compel that he be excused from doing so. Cf. id. at 1825 n. 6 (courts should not read "futility or other exceptions" into § 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.