Moorland v. Martinez

Filing 5

ORDER DISMISSING CASE WITHOUT PREJUDICE. Plaintiff's Request to Proceed in forma pauperis is DENIED. Signed by Judge Yvonne Gonzalez Rogers on 4/8/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 4/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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vs.
OFFICER E. MARTINEZ,
Defendant.

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United States District Court
For the Northern District of California

ORDER OF DISMISSAL

Plaintiff,

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No. C 12-05892 YGR (PR)

GREGORY L. MOURLAND, JR.,

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Plaintiff, a state prisoner, has filed a pro se complaint under 42 U.S.C. § 1983. He also seeks

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leave to proceed in forma pauperis under 28 U.S.C. § 1915. Plaintiff has not exhausted California's

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prison administrative process, however.

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

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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

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

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United States District Court
For the Northern District of California

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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

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exhaustion applies." Id. at 1120. Here, Plaintiff concedes he has not exhausted his administrative

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remedies. Plaintiff has not presented any extraordinary circumstances which might compel that he

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be excused from complying with PLRA's exhaustion requirement. Cf. Booth, 532 U.S. at 741 n.6

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(courts should not read "futility or other exceptions" into § 1997e(a)).

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Accordingly, Plaintiff's request to proceed in forma pauperis is DENIED, and the complaint

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is DISMISSED without prejudice to refiling after exhausting California's prison administrative

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process. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (action must be

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dismissed without prejudice unless prisoner exhausted available administrative remedies before he

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filed suit, even if prisoner fully exhausts while the suit is 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: April 8, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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