In re Deborah Belcher

Filing 5

ORDER DISMISSING CASE WITHOUT PREJUDICE, ***Civil Case Terminated. Signed by Judge Yvonne Gonzalez Rogers on 6/8/12. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 6/8/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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In re DEBORAH BELCHER,

No. C 12-02144 YGR (PR)

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ORDER OF DISMISSAL

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United States District Court
For the Northern District of California

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Plaintiff Deborah Belcher, a state prisoner, filed a document which was opened as a pro se
action under 42 U.S.C. § 1983. Plaintiff has not exhausted California's prison administrative
process, however.
The Prison Litigation Reform Act of 1995 (PLRA) amended 42 U.S.C. § 1997e to provide

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that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any

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other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such

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administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Although once

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within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now

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mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). All available remedies must now be

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exhausted; those remedies "need not meet federal standards, nor must they be 'plain, speedy, and

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effective.'" Id. (citation omitted). Even when the prisoner seeks relief not available in grievance

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proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.; Booth v. Churner,

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532 U.S. 731, 741 (2001). Similarly, exhaustion is a prerequisite to all prisoner suits about prison

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life, whether they involve general circumstances or particular episodes, and whether they allege

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excessive force or some other wrong. Porter, 534 U.S. at 532. PLRA's exhaustion requirement

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requires "proper exhaustion" of available administrative remedies. Woodford v. Ngo, 548 U.S. 81,

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94 (2006).

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departmental decision, action, condition or policy perceived by those individuals as adversely

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affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). It also provides them the right to file

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appeals alleging misconduct by correctional officers/officials. Id. § 3084.1(e). In order to exhaust

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available administrative remedies within this system, a prisoner must proceed through several levels

The State of California provides its prisoners the right to appeal administratively "any

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of appeal: (1) informal resolution; (2) formal written appeal on a CDC 602 inmate appeal form;

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(3) second level appeal to the institution head or designee; and (4) third level appeal to the Director

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of the California Department of Corrections and Rehabilitation. Barry v. Ratelle, 985 F. Supp. 1235,

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1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's

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level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38.

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Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by

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defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b).

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Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). However, a complaint may be dismissed by

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the court for failure to exhaust if a prisoner "conce[des] to nonexhaustion" and "no exception to

United States District Court
For the Northern District of California

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exhaustion applies." Id. at 1120. Here, Plaintiff concedes she has not exhausted her administrative

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remedies. In a letter filed on May 24, 2012, Plaintiff claims that she has "not yet received back [her]

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responce [sic] to [her] CDCR 3rd level 602 appeal." (Pl.'s May 24, 21012 Letter at 1.) Plaintiff has

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not presented any extraordinary circumstances which might compel that she be excused from

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complying with PLRA's exhaustion requirement. Cf. Booth, 532 U.S. at 741 n.6 (courts should not

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read "futility or other exceptions" into § 1997e(a)).

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Accordingly, the complaint is DISMISSED without prejudice to refiling after exhausting

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California's prison administrative process. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th

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Cir. 2002) (action must be dismissed without prejudice unless prisoner exhausted available

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administrative remedies before he filed suit, even if prisoner fully exhausts while the suit is

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pending).

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The Clerk of the Court shall enter judgment, terminate any pending motions, and close the
file.
IT IS SO ORDERED.
DATED:

June 8, 2012
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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