Opinion
No. C 00-0218 WHA (PR)
September 29, 2003
JUDGMENT
The court has dismissed this prisoner in forma pauperis compliant. A judgment of dismissal without prejudice is entered in favor of defendants. Plaintiff shall take nothing by way of his complaint.
This is a civil rights case filed pro se by a former prisoner at San Quentin State Prison. Plaintiff has now been released, apparently on parole.
Defendants moved to dismiss or for summary judgment. Although the court denied defendants' motion, it also sua sponte raised the question of whether plaintiffs claims were administratively exhausted. The parties were ordered to address that issue, which they did. The United States Court of Appeals for the Ninth Circuit then decided Wyatt v. Terhune, 280 F.3d 1238 (9th Cir. 2002), withdrawn on denial of rehearing. 305 F.3d 1033 (9th Cir. Sept. 23, 2002), superceded. 315 F.3d 1108. (9th Cir. 2003). petition for certiorari filed. 71 U.S.L.W. 3668 (Apr 01, 2003) (No. 02-1486), in which the court held that exhaustion-is. an affirmative defense which must be raised by defendants, and that a district court may not dismiss a prisoner case for failure to exhaust unless the plaintiff concedes that he or she has not exhausted, hi that opinion the Ninth Circuit indicated that if materials other than the complaint and possibly attachments are proffered, the exhaustion issue should be raised in a motion for summary judgment. Id. at 1246-47. This Court therefore invited a then-proper motion for summary judgment from defendants on the exhaustion issue, which they filed. Plaintiff did not file an opposition.
Subsequent to this, the Ninth Circuit withdrew the originalWyatt opinion on denial of rehearing, 305 F.3d 1033 (9th Cir. Sept. 23, 2002), and filed a superceding opinion in which it held that the proper means of raising an exhaustion defense is by an unenumerated motion to dismiss. 315 F.3d 1108, 119-20 (9th Cir. 2003), petition for certiorari filed. 71 U.S.L.W. 3668 (Apr 01, 2003) (No. 02-1486).
DISCUSSION
After defendants filed their motion for summary judgment on exhaustion grounds, and after the Court had granted his request for an extension of time to oppose the motion, plaintiff informed the Court that he had not been receiving his mail. Defendants filed a "reply" noting that an opposition had not been filed and arguing that they should be granted summary judgment; that reply was sent to plaintiff at both the addresses plaintiff had provided, including the new address in his letter informing the Court he had not been getting his mail. Although that reply was filed on July 23, 2003, plaintiff has not communicated further with the Court, has not requested a further extension of time to file an opposition or notified the Court of a new address. Because of the unique procedural posture of this case, the Court will consider the opposition plaintiff filed in response to the Court's earlier sua sponte request for briefing on the exhaustion issue in deciding the present motion.
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). Compliance with the exhaustion requirement is required. Porter v. Nussle, 122 S.Ct. 983, 992 (2002);Booth v. Churner, 532 U.S. 731, 739-40 n. 5 (2001). Nonexhaustion under § 1997e(a) is an affirmative defense — defendants have the burden of raising and proving the absence of exhaustion. Wyatt 315 F.3d at 1119. It should be raised in an unenumerated Rule 12(b) motion rather than in a motion for summary judgment. Id. In deciding such a motion-a motion to dismiss for failure to exhaust nonjudicial remedies — the court may look beyond the pleadings and decide disputed issues of fact.Id. at 1119-20. If the court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal without prejudice. Id. at 1120.
The State of California provides its inmates 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). It also provides its inmates the right to file administrative appeals alleging misconduct by correctional officers. Id § 3084. l(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. Id § 3084.5;Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the administrative remedies exhaustion requirement under § 1997e(a). Id at 1237-38. A prisoner need not proceed further and also exhaust state judicial remedies. Jenkins v. Morton, 148 F.3d 257, 259-60 (3d Cir. 1998). Nor is a prisoner required to comply with the California Tort Claims Act and present his claims to the State Board of Control in order to fulfill the exhaustion requirement.Rumbles v. Hill 182 F.3d 1064, 1070 (9th Cir. 1999). overruled on other grounds by Booth v. Churner, 532 U.S. 731 (2001).
The chief difference between an unenumerated motion to dismiss and a motion for summary judgment is that in ruling on an unenumerated motion the court may decide disputed issues of fact. Id at 1119-20. Also, if an unenumerated motion is granted the dismissal is without prejudice, rather than the dismissal with prejudice that would follow the grant of a summary judgment motion. Id at 1120. There are procedural differences as well, of course, in that the summary judgment procedure of movants attempting to show that there are no genuine issues of material fact, and the resisting party attempting to show that there are, does not apply. Disputed questions of fact are to be decided by the court according to the evidence; that is, rather than deciding whether there is a disputed issue of material fact, if these is such an issue the Court must resolve it. Fortunately, that is not necessary in this case because the undisputed evidence shows that plaintiff failed to exhaust before filing this suit.
Defendants assert that although plaintiff filed a number of administrative appeals (grievances) while he was at San Quentin, he did not raise the environmental tobacco smoke ("ETS") issues he presents here. In response plaintiff contends that the Court's grant of in forma pauperis status somehow relieves him of the obligation to exhaust. The two things are not related; this contention is frivolous. Plaintiff also contends that he should be allowed to proceed on the authority of Rumbles v. Hill 182 F.3d 1064 (9th Cir. 1999), overruled by Booth v. Churner, 532 U.S. 731 (2001), which held that a prisoner is not required to exhaust administrative remedies if all he seeks is money damages and such damages are not available from the grievance system. As the citation indicates, this holding was specifically overruled by the United States Supreme Court. Finally, plaintiff asserts that he exhausted his administrative remedies after he commenced this suit. Section 1997e(a) requires that an action be dismissed unless the prisoner exhausted his available administrative remedies before he or she filed suit, even if the prisoner fully exhausts while the suit is pending. McKinney v. Carey. 311 F.3d 1198, 1199 (9th Cir. 2002).
In his brief and declaration in support of it plaintiff provides copies of the administrative appeals in which he contends he exhausted his claims, exhibits A-Q, Although by no means all the grievances are about ETS, this is irrelevant because the dates on the third level responses he has provided are all after suit was filed. As noted above, this is not sufficient.
Defendants' motion for summary judgment, treated as a unenumerated motion to dismiss, will be granted.
CONCLUSION
For the foregoing reasons, defendants' motion (doc 57) is hereby GRANTED. This case is DISMISSED without prejudice.