United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MICHAEL IZELL SEALS, 

Plaintiff,

 v.

SHERIFF RODNEY K. MITCHELL, et al.,

Defendants. 

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No. C 05-1863 SBA (PR)

ORDER OF DISMISSAL

Plaintiff Michael Izell Seals, a state prisoner currently incarcerated at San Quentin State

Prison and a frequent litigant in federal court, filed the instant pro se civil rights complaint under 42

U.S.C. § 1983. 

In an Order dated July 11, 2008, the Court dismissed the complaint with leave to amend. 

Plaintiff was directed to file an amended retaliation claim to correct the pleading deficiencies with

respect to this claim. Plaintiff was also directed to inform the Court whether he exhausted his

administrative remedies with respect to his retaliation claim before he filed his complaint. 

On July 21, 2008, Plaintiff filed a response to the Court's July 11, 2008 Order. Plaintiff

requests an extension of time to file an amendment to the complaint because he is "attempting to

exhaust administrative remedies on the Lake County Jail Retaliation claim in this instant case." 

(Pl.'s Mot. at 4.) 

 The Prison Litigation Reform Act of 1995 (PLRA) 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). Although once

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

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

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

Case 4:05-cv-01863-SBA Document 72 Filed 07/25/08 Page 1 of 4
United States District Court

For the Northern District of California

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

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

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

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

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

requires "proper exhaustion" of available administrative remedies. Woodford v. Ngo, 126 S. Ct.

2378, 2387 (2006).

The State of California provides its prisoners 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 them the right to file

appeals alleging misconduct by correctional officers/officials. 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. 

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

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

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

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

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

remedies with respect to his retaliation claim before he filed his complaint. In fact, he admits that

he has only now begun the process of exhausting his administrative remedies. Plaintiff has not

presented any extraordinary circumstances which might compel that he be excused from complying

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

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

Case 4:05-cv-01863-SBA Document 72 Filed 07/25/08 Page 2 of 4
United States District Court

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P:\PRO-SE\SBA\CR.05\Seals1863.dismiss.frm 3

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

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

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

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

pending). The Clerk of the Court shall enter judgment in accordance with this Order, close the file,

and terminate any pending motions. 

IT IS SO ORDERED.

DATED: 7/25/08 _______________________________

SAUNDRA BROWN ARMSTRONG

United States District Judge

Case 4:05-cv-01863-SBA Document 72 Filed 07/25/08 Page 3 of 4
United States District Court

For the Northern District of California

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P:\PRO-SE\SBA\CR.05\Seals1863.dismiss.frm 4

UNITED STATES DISTRICT COURT

FOR THE 

NORTHERN DISTRICT OF CALIFORNIA

SEALS,

Plaintiff,

 v.

MITCHELL et al,

Defendant. /

Case Number: CV05-01863 SBA 

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District

Court, Northern District of California.

That on July 25, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said

copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said

envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle

located in the Clerk's office.

Michael Izell Seals V77488

California State Prison - San Quentin

San Quentin, CA 94974

Dated: July 25, 2008

Richard W. Wieking, Clerk

By: LISA R CLARK, Deputy Clerk

Case 4:05-cv-01863-SBA Document 72 Filed 07/25/08 Page 4 of 4