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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BENJAMIN ADAMS, 

Plaintiff, No. CIV S-04-0694 DFL KJM P

vs.

TERESA SCHWARTZ, et al., ORDER AND

Defendants. FINDINGS & RECOMMENDATIONS

 /

Plaintiff is a prisoner proceeding pro se with a civil rights action under 42 U.S.C.

§ 1983. Defendants have filed a motion to dismiss, alleging that plaintiff has failed to exhaust

his administrative remedies as to defendant Mehta and, as a result, the entire complaint must be

dismissed under the PLRA’s “total exhaustion requirement.”

I. The Complaint And Exhaustion Of Administrative Remedies

In his amended complaint, plaintiff alleges that defendant Mehta administered a

sulfa drug to plaintiff even though he knew plaintiff is allergic to sulfa drugs. Amended

Complaint (Am. Compl.) at 2-4. A separate claim is based on defendant Fisher’s alleged

interference with plaintiff’s receiving insulin in a timely fashion. Id. 

Defendants have filed a motion to dismiss, asserting that plaintiff has not

exhausted his administrative remedies as to defendant Mehta and that this failure to comply with

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the “total exhaustion” requirement of the Prison Litigation Reform Act, 28 U.S.C. § 1997e(a)

(PLRA), means that the claims against defendant Fisher should be dismissed as well. 

Plaintiff concedes he has failed to exhaust administrative remedies as to defendant

Mehta and has “no problem with this Honorable Court dismissing Dr. Mehta from this action.” 

Opposition (Opp’n) at 1. He argues, however, that the entire complaint should not be dismissed

and the claims against defendant Fisher, who has “cross[ed] the line,” should go forward. Opp’n

at 3.

As the Ninth Circuit has recognized, a prisoner’s concession of failure to exhaust

is a proper basis for dismissal. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir), cert. denied sub

nom. Alameida v. Terhune, 540 U.S. 810 (2003). Accordingly, the claims based on defendant

Mehta’s alleged administration of sulfa drugs should be dismissed.

II. Complete Exhaustion

The PLRA provides, in pertinent part, that “[n]o action shall be brought with

respect to prison conditions under section 1983 of this title, . . . until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of such remedies is

mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001).

Defendants argue that the PLRA imposes a “total exhaustion” requirement on

prisoner civil rights actions, which means that an entire action must be dismissed when some of

the claims have not been exhausted administratively. Two circuits and several district courts

have adopted this view. Mem. P. & A. in Supp. Mot. to Dismiss at 8-9. 

In Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004), the court

found the PLRA contains a total exhaustion requirement, which mandates dismissal of a

complaint that combines exhausted and unexhausted claims. It reached its conclusion by

examining total exhaustion in the context of habeas corpus cases and the policies underlying the

PLRA. The court noted that requiring total exhaustion would encourage prisoners to “make full

use” of internal grievance procedures, “facilitate the creation of an administrative record,” and

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“relieve the district courts of the duty to determine whether certain exhausted claims are

severable from other unexhausted claims. . . .” Id. at 1190. 

In Bey v. Johnson, 407 F.3d 801, 807 (6th Cir. 2005), the Sixth Circuit also

looked to habeas jurisprudence as support for its adoption of the total exhaustion requirement,

but rested its conclusion “in large part” on “the plain language of the statute.” The court found

that when Congress used the term “action” it meant “suit” rather than individual allegations or

claims. Id. See also Rivera v. Whitman, 161 F. Supp.2d 337, 341-43 (D.N.J. 2001) (adopting

total exhaustion approach), abrogated on other grounds by Ray v. Kertes, 285 F.3d 287 (3rd Cir.

2002); Mubarak v. California Department of Corrections, 315 F. Supp. 2d 1057, 1060-61 (S.D.

Cal. 2004) (same); Smeltzer v. Hook, 235 F. Supp. 2d 736, 744 (W.D. Mich. 2002). 

Defendants also rely on the Eighth Circuit’s decision in Graves v. Norris, 218

F.3d 884 (8th Cir. 2000) in support of their total exhaustion argument. In Graves, the court

upheld a district court’s dismissal of an action when some but not all of the claims had not been

exhausted. Id. at 885. However, in Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (8th Cir. 

2003), the court found a district court had abused its discretion in denying the inmate’s motion to

amend the complaint to dismiss the unexhausted claim. 

The Second Circuit has agreed that any one of a prisoner’s claims that has not

been exhausted is not cognizable:

Section 1997e(a) clearly instructs that an action . . . containing

exhausted and unexhausted claims should not have been “brought.” 

But we do not think that it follows that the only possible response

to the impermissibility of the bringing of the action is to dismiss it

in its entirety–to kill it rather than to cure it. The statute does not

say so. And section 1997e(c), which addresses “dismissals” of

some such suits by prisoners–and is therefore the place where we

would expect to find guidance as to whether dismissal of “mixed”

actions is required–is silent on the issue.

Ortiz v. McBride, 380 F.3d 649, 657 (2d Cir. 2004), cert. denied, U.S. , 125 S. Ct. 1398

(2005). The court in Ortiz rejected the Tenth Circuit’s position that dismissing mixed actions in

their entirety would force prisoners to make use of internal grievance procedures; it found

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dismissing only the unexhausted claims will serve the same purpose, for the claim will not be

heard in any renewed action unless it has been exhausted. Id. at 661; compare Ross, 365 F.3d at

1189. 

The Second Circuit found the comparison between habeas and civil rights

exhaustion to be inapt: A habeas petition focuses on a single event, generally a state court

conviction, and presents generally interconnected claims. The dismissal of a mixed habeas

petition, then, means a court will not have to review the underlying facts twice. Civil rights

actions, in contrast, “routinely seek to address more than one grievance–sometimes a laundry list

of grievances–relating to different events or circumstances.” Ortiz, 380 F.3d at 661-62. The

dismissal of the entire action in these circumstances does little to promote judicial efficiency. 

Id.; see also Blackmon v. Crawford, 305 F. Supp. 2d 1174, 1179-80 (D. Nev. 2004) (rejecting

dismissal of mixed civil rights action).

This court believes the Second Circuit’s approach provides the best model in the

absence of clear direction from the Ninth Circuit. First, neither the plain language of the statute

nor the underlying policies mandate the complete dismissal of a mixed civil rights action. While

section 1997e(a) provides that “no action shall be brought” unless administrative remedies have

been exhausted, it says nothing about the disposition of mixed actions. Moreover, requiring total

dismissal of a mixed action will not necessarily promote judicial efficiency: a dismissal of a

mixed action would likely prompt the prisoner to file a new suit containing only the exhausted

claims, which would then be subject to the court’s required screening process for prisoner cases. 

There is no guarantee the same judge would screen the new action. Thus, application of a “total

exhaustion” rule would do little to address Congress’s concern with reducing the burden on

courts caused by inmate litigation. 

/////

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 Moreover, even a “mixed” habeas petition may be saved from total dismissal if the

inmate files an amended petition containing only exhausted claims. See Smith v. Ratelle, 323 

F.3d 813, 819 (9th Cir. 2003), cert. denied sub nom. Alameida v. Smith, U.S. , 124 S. Ct.

2904 (2004).

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Finally, the Ninth Circuit has recently rejected attempts to graft habeas procedures

onto civil rights actions:

Congress intended § 1997e(a) “to reduce the quantity and improve

the quality of prisoner suits.” Merging procedural default with the

PLRA’s exhaustion requirement, though, would potentially reduce

the quantity of meritorious suits and would not necessarily improve

the quality of the surviving suits. In addition, neither the interests

of federalism nor comity are served by imposing a procedural

default component on the PLRA’s exhaustion requirement. 

Ngo v. Woodford, 403 F.3d 620, 630 (9th Cir. 2005) (internal citation omitted). Similarly,

dismissing a civil rights action that contains both exhausted and unexhausted claims would

neither reduce the quantity nor improve the quality of such lawsuits, nor serve the interests of

federalism.1

Accordingly, although plaintiff has failed to exhaust his administrative remedies

as to defendant Mehta, the suit against defendant Fisher should proceed. 

III. Motion For The Appointment Of Counsel

Plaintiff has requested the appointment of counsel. The United States Supreme

Court has ruled that district courts lack authority to require counsel to represent indigent

prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

certain exceptional circumstances, the court may request the voluntary assistance of counsel

pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court

does not find the required exceptional circumstances. Plaintiff’s request for the appointment of

counsel will therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s June 24, 2005 request

for the appointment of counsel is denied.

IT IS HEREBY RECOMMENDED that defendants’ motion to dismiss be granted

as to defendant Mehta, but denied as to defendant Fisher. 

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned 

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 

DATED: July 28, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

2

adam0694.57

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