Lira v. Herrera , 427 F.3d 1164 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO G. LIRA, 
Plaintiff-Appellant,
v.
LT. HERRERA; M. PILAND; J. No. 02-16325
BRIDDLE; A. SCRIBNER; J. STOKES;
B. HEAPS, K. CRUSE; BRUCE;  D.C. No.
CV-00-00905-SI
FIELDER; M. NIMROD; K. MANN; D.
OPINION
BEST; C. PATTEN; D. BRADBURY;
K.C. BOLLES; EDWARD ALAMEIDA;
Asst. Warden BUSSER,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Susan Yvonne Illston, District Judge, Presiding
Argued and Submitted
November 2, 2004—San Francisco, California
Filed November 1, 2005
Before: Stephen Reinhardt, David R. Thompson, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
14919
14922 LIRA v. HERRERA
COUNSEL
Douglas A. Winthrop and Warren Metlitzky, Howard Rice
Nemerovski Canady Falk & Rabin, San Francisco, California,
for the plaintiff-appellant.
Bill Lockyer, Attorney General of the State of California,
Robert R. Anderson, Chief Assistant Attorney General, Paul
D. Gifford, Senior Assistant Attorney General, Frances T.
Grunder, Senior Assistant Attorney General, Rochelle C.
Holzmann, Supervising Deputy Attorney General, Barbara C.
Spiegel, Supervising Deputy Attorney General, and Jonathan
L. Wolff, Supervising Deputy Attorney General, San Fran-
cisco, California, for the defendants-appellees.
LIRA v. HERRERA 14923
OPINION
BERZON, Circuit Judge:
Ernesto Lira was for several years placed in administrative
segregation, and later in a Special Housing Unit (SHU),
because prison officials determined that he was affiliated with
a prison gang and posed a threat to prison safety. He filed this
suit under 42 U.S.C. § 1983, protesting that his treatment at
California’s Deuel Vocational Institute and Pelican Bay
Prison violated due process. The district court granted defen-
dants’ joint motion for summary judgment on the ground that
the sole remaining cause of action encompassed both a fully
exhausted claim and some unexhausted claims. We must
decide whether the district court properly construed the Prison
Litigation Reform Act’s (“PLRA”) exhaustion requirement,
42 U.S.C. § 1997e(a).
FACTUAL BACKGROUND
Lira is a former inmate of the California corrections sys-
tem. He entered the Deuel Vocational Institute (DVI) in 1995,
where he was immediately “validated” as an associate of the
Northern Structure gang. “Validation” as a prison gang mem-
ber is a designation reserved for prison gang members
believed to pose a threat to prison safety. For Lira, the conse-
quence of validation was placement in administrative segrega-
tion1 at DVI and then in the Special Housing Unit (“SHU”)2
1
The Department of Corrections’ internal regulations explain that
administrative segregation, or “ad-seg,” “provides secure housing upon the
initial period of separation from the general population for any reason
until a classification committee has determined whether the inmate’s
placement should be in a specialized housing unit or in the general popula-
tion.” Department of Operations Manual (“DOM”) § 62050.10.1, avail-
able at http://www.corr.ca.gov/RegulationsPolicies/PDF/DOM/00_dept_
ops_maunal.pdf (last visited Sept. 22, 2005). Criteria for placement in ad-
seg are “limited to those cases where reasons exist that the inmate’s con-
tinued presence in the general population would do any of the following:
14924 LIRA v. HERRERA
of Pelican Bay State Prison. At both institutions, Lira was
locked in his cell for twenty-two and one half hours each day.
On January 4, 1996, Lira appeared before DVI’s Institution
Classification Committee (ICC) for his initial review of the
validation designation.3 See DOM § 62050.10.6. He was told
that there was “some evidence” of his membership in the
Northern Structure gang, but not what the evidence was. Lira
again appeared before the ICC at monthly reviews in Febru-
ary and March 1996 but was given no further information.
After court appearances in the spring of 1996 Lira was
returned to DVI where he was placed, again, in administrative
segregation. On June 27, 1996, Lira attended another ICC
[e]ndanger the security of the institution; [j]eoparidize the integrity of a
serious misconduct or criminal investigation; [e]ndanger the safety of the
inmate or others.” DOM § 62050.10.3.
2
“SHUs provide secure housing for inmates whose conduct endangers
the safety of others or the security of the institution.” DOM § 62050.13.
Internal regulations require that an inmate
be placed in SHU if: [t]he inmate has requested segregation for
their own protection and the need can be substantiated by appro-
priate staff; [t]he inmate is newly arrived at the institution and
more information is needed to determine whether the inmate may
be incompatible with any element of the general population . . . ;
[t]he inmate has been found guilty of a disciplinary offense suffi-
ciently serious to warrant confinement for a fixed term in segre-
gation, and the term is fixed in conformance with the SHU Term
Assessment Chart; [t]he inmate’s continued presence in general
population would severely endanger lives of inmates or staff, the
security of the institution or the integrity of an investigation into
suspected criminal activity.
Id. DOM § 62050.13.2.
3
The Department’s internal regulations require initial review of ad-seg
placement “within ten days of receipt in the unit.” If an inmate is retained
in ad-seg, the “ICC shall review the inmate at least every 30 days thereaf-
ter until the inmate is released from temporary segregation.” DOM
§ 62050.10.6.
LIRA v. HERRERA 14925
review of his placement, but, once more, was given no details
concerning the evidence substantiating his validation as a
Northern Structure gang member.
At that time, it appears, the Department of Corrections’
Special Services Unit (SSU), did not have Lira’s “C-file,” the
central file containing all documentation concerning an
inmate. The C-file contained the information that formed the
basis for Lira’s initial administrative segregation placement.
The SSU received the C-file after Lira’s June 1996 review but
before his July 1996 review.
On July 29, 1996, after approximately seven months of
placement in administrative segregation, Lira resorted to the
Department’s three-level inmate grievance process to com-
plain about his validation. A grievance is usually first consid-
ered by a prison’s Appeals Coordinator and involves an
interview with the inmate. See Cal. Code Regs. tit. 15,
§ 3084.3(a), (b). The institution’s head or regional parole
administrator reviews the grievance at the second level of
review. See id. § 3084.5(c), (e)(1). Finally, a designee of the
Director of the Department of Corrections hears the third for-
mal appeal. See id. § 3084.5(e)(2).
Lira wrote a description of his problem on his grievance
form, explaining that he had never received the evidence that
constituted his validation as a Northern Structure member and
arguing that he therefore could not prepare for the reviews of
his placement in administrative segregation. He also repre-
sented that he had spoken with a Merced County Sheriff’s
Office correctional officer who had provided the prison with
information about his status as a Northern Structure associate.
According to Lira, the officer told him that he had reported
only that Lira had been housed with the Northern Structure
inmates during a prior jail sentence, not that Lira himself was
in the Northern Structure gang. Lira also complained that he
had made a request for information concerning his validation
from the ICC but received no response. In the section labeled
14926 LIRA v. HERRERA
“Action Requested,” he stated: “#1 To be released from ad/
seg and returned to [general population], #2 remove all these
128-B from my C.D.C. file. 3. Be given a program, and left
alone to do my time. I’m too old to play games, never have.”
Lira received a first level response on August 22, 1996. His
appeal was denied in light of the “staff belie[f] that [he] was
an associate member of th[e] prison gang.” Lira was told,
however, that an investigation of his gang status was under-
way, because the July 2, 1993 document used to validate his
membership in the Northern Structure gang “[did] not meet
current departmental validation requirements.”
Lira appealed the decision to the second level review on
September 2, 1996, arguing that he was dissatisfied with the
first level review because, as his first level interviewer had
told him, the 1993 document used to justify his administrative
segregation placement was “all wrong.” Following Lira’s
transfer to the Pelican Bay State Prison, a second level
response, denying relief, was issued, on September 27, 1996.
While the second level review was pending, the SSU revali-
dated Lira as a gang associate, applying the then-current regu-
lations. By the time of the second level response, the report
used to validate Lira as a member of the Northern Structure
gang had been reconsidered under the new regulations. Lira’s
second level appeal was denied on the basis that the revalida-
tion was proper.
Lira received a copy of his C-file on October 18, 1996. He
learned that his validation stemmed from information pro-
vided by a DVI correctional counselor in 1992 and 1993. The
next day, Lira appealed the second level reviewer’s decision
on his July 29, 1996 grievance to the third level, that of the
Director of the Department of Corrections. He explained his
dissatisfaction as follows:
“First of all,” to this date, and many request forms
later, I have not received the suppose 128 B-2 dated
LIRA v. HERRERA 14927
9-4-96 or any other documentation relied upon to
validate me as something I’m not. I am now here at
[Pelican Bay State Prison] with an indeterminate
SHU. These chronos inclosed is all that I have
received. Directors rule 3000 defines “gangs” means
to engage or have engaged on behalf of an organiza-
tion in unlawful acts. I have no serious “115.”[4] I
am not satisfied and request a director’s review.
The Director issued a denial of Lira’s final appeal on Janu-
ary 24, 1997. The response memorandum summarized the
issue as follows: “Whether or not the institution’s denial of
appellant’s request to release him to the general population
and remove all gang related information from his Central File
(C-File) is appropriate.” The Director level response indicated
that Lira’s continued detention in administrative segregation
was appropriate because of the recent revalidation. Citing the
relevant regulations, the memorandum concluded that “[t]he
documentation and arguments presented are persuasive that
the appellant fails to provide convincing proof that he was
inappropriately removed from the general population.”
Lira continued to be dissatisfied with his placement in
administrative segregation. He sought and received confirma-
tion from Merced County Sheriff’s Department Correctional
Officer Romero that the Merced County Sheriff’s Department
“cannot find any gang validation on Ernesto Lira in Merced
County jail.” Lira proceeded to file a second grievance on
April 4, 1998, requesting “(A) immediate release from inde-
terminate SHU status; (B) that R. Romero’s letter dated 3-8-
1998 be entered into my C-File (in re: confidential section/
gang status); and (C) that the 128-B dated 5-10-93 in regards
to what IGI Covello claims C.O. Romero told him be
expunged, dropped, or reinvestigated for independent reliabil-
ity.”
4
CDC Form 115 is used to report prisoners’ rules violations. See DOM
§ 61020.7.
14928 LIRA v. HERRERA
The first level response memorandum to this grievance,
dated August 6, 1998, explained that Lira’s appeal was denied
because the three items used to validate Lira’s status as a
Northern Structure gang member “[met] the criteria for use in
the validation process.” The reviewer contacted Officer R.
Romero to verify that the letter was authentic. The memoran-
dum explained that the letter had no bearing on Lira’s valida-
tion within the prison, as the letter “merely refer[red] to
Merced County Sheriff’s Department consideration for vali-
dation.” The response also denied Lira’s request to have the
letter added to his C-File.
Lira’s second level appeal was also denied, on September
21, 1998. The response memorandum agreed with the first
level reviewer’s conclusions that the documents used to vali-
date Lira as a member of the Northern Structure gang were
adequate. The second level reviewer also rejected Lira’s argu-
ment that “the information utilized was not proven to be first-
hand or hearsay and, therefore, d[id] not meet standards,” and
stated that “[a]ll nonconfidential information utilized by the
SSU and [Institutional Gang Investigator] during the valida-
tion process was available and disclosed to the inmate prior
to the inmate’s classification appearances.” Lira did not pur-
sue this second grievance further.
He did, however, file a third grievance, on November 3,
1999, protesting, once again, his indeterminate administrative
segregation placement. Under “Action Requested,” Lira
wrote: “(1) to immediately be released from this unjust inde-
terminate SHU placement. (2) to be given my day for day
time credits good time work time. Under Pen. Code 2933 -
Title 15 sec. 3043(c).” It appears that for this grievance Lira
completed only the first level of review, which was denied.
In March 2000, Lira, representing himself, filed suit in dis-
trict court under 42 U.S.C. § 1983, alleging (1) that his valida-
tion as a Northern Structure gang member violated due
process; (2) that the defendants exhibited deliberate indiffer-
LIRA v. HERRERA 14929
ence to his safety, in violation of the Eighth Amendment, by
randomly assigning him a cellmate with no consideration of
inmate compatibility; and (3) that he was denied his constitu-
tional right of access to the courts. Ruling on a defense
motion to dismiss, the district court dismissed the second and
third claims for failure to state a claim.5 Approximately one
year later, ruling on a defense motion for summary judgment
on the sole remaining cause of action, the court reasoned that
because Lira failed to appeal his 1998 and 1999 grievances to
the third level, he had not met the exhaustion requirement of
42 U.S.C. § 1997e(a). The court dismissed the entire case
without prejudice.
DISCUSSION
[1] Generally, “exhaustion is a not a prerequisite to an
action under § 1983.” Patsy v. Bd. of Regents, 457 U.S. 496,
501 (1982). The PLRA, Pub. L. No. 104-134, § 803(d), 110
Stat. 1321-71 (1996), however, amended the Civil Rights of
Institutionalized Persons Act (“CRIPA”), Pub. L. No. 96-247,
94 Stat. 349 (1980), to create an exhaustion requirement for
suits brought by prisoners under 42 U.S.C. § 1983 with
respect to prison conditions. The amendment added by the
PLRA states: “No action shall be brought with respect to
prison conditions under section 1983 of this title, 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).
[2] Lira recognizes that under § 1997e(a) only those aspects
of his suit for which he completed all levels of the internal
prison appeals process may go forward. Lira’s objection is
that the district court implemented this requirement by dis-
missing the entire action, without prejudice to refiling after
5
The district court also denied the defendants’ motion to dismiss Lira’s
claims as time-barred, a ruling that the defendants have not challenged
before this court.
14930 LIRA v. HERRERA
exhaustion is completed. Defendants, in contrast, urge us to
affirm the dismissal of Lira’s entire case, because of his
asserted failure completely to exhaust all of his claims before
filing.6
[3] The pivotal question is, consequently, a narrow one:
Where a prisoner’s complaint contains exhausted and unex-
hausted claims, need the district court dismiss the entire
action, or may only the unexhausted claims or only the com-
plaint be dismissed, in the last instance allowing the prisoner
to seek leave to amend his complaint by excising the unex-
hausted claims?
As a preliminary matter, we take note of the crucial distinc-
tion between dismissing an action and dismissing a complaint.
Dismissal of an entire action constitutes a final judgment by
a district court. See WMX Techs., Inc. v. Miller, 104 F.3d
1133, 1136 (9th Cir. 1997) (en banc) (holding that “a plaintiff,
who has been given leave to amend, may not file a notice of
appeal simply because he does not choose to file an amended
complaint,” as appellate review is unavailable until a district
court orders dismissal of an entire action). In contrast, when
a district court dismisses a complaint for failure to state a
claim, granting leave to amend the defective complaint is rou-
tine. If a plaintiff does not take advantage of the opportunity
to fix his complaint, a district court may convert the dismissal
of the complaint into dismissal of the entire action. See Your-
ish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (hold-
ing that a district court that had granted leave to amend the
complaint did not abuse its discretion by dismissing entire
action when plaintiff failed to replace a defective complaint).
6
Although defendants label the rule for which they argue as one of
“total exhaustion,” we use the term “total exhaustion dismissal.” There is
no dispute that the action must be “totally exhausted” in the sense that
only exhausted claims can be litigated. The dispute concerns only whether
the action must be dismissed and refiled if there are unexhausted claims
included.
LIRA v. HERRERA 14931
Failure to grant leave to amend the complaint, however, “is
improper unless it is clear, upon de novo review, that the com-
plaint could not be saved by any amendment.” Thinket Ink
Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053,
1061 (9th Cir. 2004). This usual scheme applies in the pris-
oner civil rights litigation context. See Lopez v. Smith, 203
F.3d 1122, 1124 (9th Cir. 2000) (en banc) (holding that, when
dismissal is appropriate under the PLRA’s provisions allow-
ing a district court to dismiss an in forma pauperis complaint
“if the court determines that . . . the action or appeal . . . fails
to state a claim on which relief may be granted,” a district
court retains discretion to decide whether a plaintiff may
have leave to amend a complaint (quoting 28 U.S.C.
§ 1915(e)(2))).
The primary practical implications of requiring dismissal of
the entire action, as urged by the defendants, are: (1) limita-
tions periods can run while cases are pending in federal court,
possibly precluding refiling claims that were both exhausted
and timely filed in court in the first instance; (2) a new filing
fee may have to be paid; and (3) under the PLRA “strike” pro-
cedure, 28 U.S.C. § 1915(g), a prisoner who files three cases
that are ultimately dismissed may not be able to proceed in
forma pauperis in future cases.7
We are not the first circuit to consider this issue. The Sec-
7
“ ‘Strikes’ are prior cases or appeals, brought while the plaintiff was
a prisoner, which were dismissed ‘on the ground that [they were] frivo-
lous, malicious, or fail[ ] to state a claim . . . . Pursuant to § 1915(g), a
prisoner with three strikes or more cannot proceed” in forma pauperis.
Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (alterations in
original). “[P]rior dismissals would qualify as strikes only if, after review-
ing the orders dismissing those actions and other relevant information, the
district court determined that they had been dismissed because they were
frivolous, malicious or failed to state a claim.” Id. at 1121. We have not
yet decided whether a dismissed lawsuit can be “frivolous, malicious, or
fails to state a claim,” because of an exhaustion defect and have no occa-
sion to do so here.
14932 LIRA v. HERRERA
ond, Sixth, Eighth, and Tenth Circuits have all considered the
same question, with conflicting results. Compare Bey v. John-
son, 407 F.3d 801, 809 (6th Cir. 2005) (holding that
§ 1997e(a) mandates dismissal of an entire action when a pris-
oner files a mixed complaint), and Ross v. County of Ber-
nalillo, 365 F.3d 1181, 1182 (10th Cir. 2004) (holding that
§ 1997e(a) creates a total exhaustion-dismissal rule), with
Ortiz v. McBride, 380 F.3d 649, 651 (2d Cir. 2004) (holding
that § 1997e(a) is not a total exhaustion-dismissal rule), and
Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (8th Cir. 2003)
(holding that § 1997e(a) requires dismissal of only the defec-
tive, mixed complaint rather than the entire action). After
reviewing relevant principles announced by the Supreme
Court, the statutory language, and underlying policy consider-
ations, we agree, with some caveats, that the Second Circuit’s
approach is appropriate, see Ortiz, 380 F.3d at 651, and hold
that the “total exhaustion-dismissal” rule urged by defendants
is not mandated by § 1997e(a).
I. The PLRA’s Exhaustion Requirement
Section 1997e(a) specifies that “[n]o action shall be
brought . . . until . . . available remedies are exhausted.” 42
U.S.C. § 1997e(a). Under this provision, no claim may be
pursued in court unless the prisoner has given the prison
authorities an opportunity to consider providing some relief
regarding the facts underlying the grievance. See Booth v.
Churner, 532 U.S. 731, 736 (2001). That requirement neces-
sarily applies to all claims alleged, as both parties recognize.
Also, a district court must dismiss a case without prejudice
“when there is no presuit exhaustion,” even if there is exhaus-
tion while suit is pending. McKinney v. Carey, 311 F.3d 1198,
1200 (9th Cir. 2002) (per curiam) (emphasis added).
The open question is whether a suit must be dismissed
when there is presuit exhaustion of one or more of the claims
contained in the complaint, or whether a different procedure
is available to assure that only exhausted claims go forward.
LIRA v. HERRERA 14933
The defendants argue that the statutory text must be read to
require dismissal without prejudice of cases in which there are
“mixed” complaints, no matter the consequence for the pris-
oner’s ability to pursue already exhausted claims. For several
reasons, we do not agree.
The text of § 1997e(a) specifies a rule regarding the insti-
gation of suit — that “[n]o action shall be brought” unless
there has been exhaustion. The statute does not prescribe the
proper response by the district court if that requirement is not
met. We have held that the phrase “[n]o action shall be
brought” does not mean that we always must dismiss an
action that does not comply with § 1997e(a). In Wyatt v. Ter-
hune, 315 F.3d 1108 (9th Cir. 2003), we held that § 1997e(a)
is not a jurisdictional requirement that the plaintiff must plead
and establish. Instead § 1997e(a) establishes an affirmative
defense, waived if the defendant does not raise it. Id. at 1117-
18 & n.9. Wyatt indicates that § 1997e(a)’s requirement
regarding commencement of the action does not foreordain
dismissal if not complied with.
Defendants’ argument for a total exhaustion-dismissal rule
must therefore rest on Congress’s use of the word “action” in
§ 1997e(a). The argument is that where dismissal is appropri-
ate, it is the entire action, not a part of it, that must be dis-
missed.
The term “action” is used throughout the statute. See, e.g.,
§ 1997e(c), (e). CRIPA, as amended by the PLRA, “like every
Act of Congress, should not be read as a series of unrelated
and isolated provisions.” Gustafson v. Alloyd Co., 513 U.S.
561, 570 (1995). To “adhere[ ] to the ‘normal rule of statutory
construction’ that ‘identical words used in different parts of
the same act are intended to have the same meaning,’ ” id.
(quoting Dep’t of Revenue v. ACF Indus., Inc., 510 U.S. 332,
342 (1994)), we consider similar uses of the term “action” in
the statute, in particular § 1997e(c) and (e).
14934 LIRA v. HERRERA
Unlike § 1997e(a), § 1997e(c) specifically covers “dismiss-
als.” The latter section provides:
Dismissal.
(1) The court shall on its own motion or on the
motion of a party dismiss any action brought with
respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner con-
fined in any jail, prison, or other correctional facility
if the court is satisfied that the action is frivolous,
malicious, fails to state a claim upon which relief can
be granted, or seeks monetary relief from a defen-
dant who is immune from such relief.
(2) In the event that a claim is, on its face, frivolous,
malicious, fails to state a claim upon which relief can
be granted, or seeks monetary relief from a defen-
dant who is immune from such relief, the court may
dismiss the underlying claim without first requiring
the exhaustion of administrative remedies.
42 U.S.C. § 1997e(c).
[4] In three respects, § 1997e(c) indicates that district
courts need not dismiss an entire action because there is an
unexhausted claim:
[5] First, in § 1997e(c), Congress ordered dismissal of cer-
tain defective suits and claims — those that are “frivolous,
malicious, fail[ ] to state a claim upon which relief can be
granted, or seek[ ] monetary relief from a defendant who is
immune from such relief,” but did not specify that mixed
actions must be dismissed. See Ortiz, 380 F.3d at 657
(“Section 1997e(c) . . . the place where we would expect to
find guidance as to whether dismissal of ‘mixed’ actions is
required[, ] is silent on the issue.”). This omission suggests
LIRA v. HERRERA 14935
that no special rule regarding the treatment of nonviable
causes of action was intended.
[6] Second, the reference to dismissal of a “claim” in
§ 1997e(c)(2) if there has been a failure to exhaust, juxta-
posed to the reference to dismissal of an “action” in
§ 1997e(c)(1), indicates that claims that have not been
exhausted can be treated independently, for dismissal pur-
poses, from the action as a whole. There would be little point
in providing for the dismissal of some nonexhausted claims
on the merits if the remainder of the action would then have
to be dismissed, although exhausted, because of the failure to
exhaust the dismissed claims.8
[7] Third, as Judge Clay persuasively explained in his dis-
sent in Bey, interpreting the word “action” in § 1997e(a) and
(c)(1) to indicate that an exhaustion defect in any claim
infects the suit as a whole would “render[ ] subsection (c)(2)
superfluous.” Bey, 407 F.3d at 811 (Clay, J., concurring in
part and dissenting in part). If § 1997e(a) demands a total
exhaustion-dismissal rule because it uses the word “action,”
then § 1997e(c)(1), because it uses the word “action,” must
also require dismissal of the entire case if any claim is “frivo-
lous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is
immune from such relief.” Yet, § 1997e(c)(1) must apply only
when all the claims meet the statutory standard for summary
dismissal on the merits, not when only some of them do. Oth-
erwise, § 1997e(c)(2), contemplating the dismissal of individ-
ual frivolous “claims,” would be unnecessary. The inclusion
of a single frivolous claim would contaminate the entire
action, mandating dismissal under § 1997e(c)(1).9
8
We note that the district court in this case followed this procedure, dis-
missing Lira’s court access and Eighth Amendment claims from the com-
plaint on the merits, before any exhaustion defense was considered.
9
We note as well that, even read independently, § 1997e(c)(1) mandates
dismissal only if the action “fails to state a claim upon which relief can
be granted.” § 1997e(c)(1) (emphasis added). In other words, one viable
claim is sufficient to avoid dismissal of the action.
14936 LIRA v. HERRERA
[8] To read the word “action” as used in § 1997e(c)(1) as
precluding dismissal of individual defective claims would
therefore clash with the “basic rule of [statutory] construc-
tion” requiring that we avoid interpreting a section of a statute
in such a way that would make other sections become redun-
dant. Padash v. INS, 358 F.3d 1161, 1170-71 (9th Cir. 2004).
Consequently, we cannot attribute to the use of the term “ac-
tion” in the PLRA the understanding that the entire case must
be treated for dismissal purposes as a unitary whole if it con-
tains both valid and invalid causes of action.
Another statutory provision reinforces this conclusion. Sec-
tion 1997e(e) provides: “No federal civil action may be
brought by a prisoner confined in a jail, prison, or other cor-
rectional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury.”
42 U.S.C. § 1997e(e). A case under § 1997e(e) analogous to
this one would be a “mixed” complaint alleging one claim for
mental and emotional suffering not stemming from an under-
lying physical injury and a second claim not alleging mental
or emotional injury, or alleging a claim for mental or emo-
tional injury stemming from a physical injury. Under defen-
dants’ unitary approach to the term “action,” dismissal of the
entire case would be warranted.
In Robinson v. Page, 170 F.3d 747 (7th Cir. 1999), the Sev-
enth Circuit rejected just that approach. Writing for the court,
Judge Posner concluded that dismissal of the defective claim
alone was “the natural reading of the statute, and there is no
legislative history or other source of meaning to contradict the
natural reading.” Id. at 748. Robinson observed that,
[t]o go further and dismiss the entire suit because it
had one bad claim would be not only gratuitous, but
also contrary to the fundamental procedural norm
that when a complaint has both good and bad claims
. . . only the bad claims are dismissed; the complaint
as a whole is not. If Congress meant to depart from
LIRA v. HERRERA 14937
this norm, we would expect some indication of that,
and we find none.
Id. at 748-49. We agree with this reasoning and find it fully
applicable to § 1997e(a).
In sum, the use of the term “action” elsewhere in the statute
does not support interpreting § 1997e(a) as dictating a total
exhaustion-dismissal rule. To the contrary, while “action” in
the PLRA refers to the case as a whole, the statute consis-
tently uses the term in a manner that contemplates dismissing
the entire action only if the entire action fails to meet statu-
tory standards. When some claims are valid and others are
not, the usual procedural norm — that when a complaint has
both good and bad claims, only the bad claims are “dis-
missed,” id., — prevails.
We regard these textual and structural considerations as
dispositive. For that reason, any analogy to habeas corpus is
unpersuasive. Contra Ross, 365 F.3d at 1189-90.
In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court
mandated a rule requiring total exhaustion-dismissal for
“mixed” habeas corpus petitions in many circumstances.10
That decision, however, depended exclusively on policy con-
siderations, because the applicable statute was not informa-
tive. Id. at 516-17 (analyzing “the policies underlying the
10
Rose, however, does not necessarily require dismissal of the action, as
opposed to the petition. See Rose, 455 U.S. at 520 (plurality) (noting that
a petitioner “can always amend the petition to delete the unexhausted
claims”). Also, as modified by the recent decision in Rhines v. Weber, 125
S. Ct. 1528 (2005), the Rose rule permits mixed petitions to be stayed
rather than dismissed in the “limited circumstances” where a district court
“determines there was good cause for the petitioner’s failure to exhaust his
claims first in state court.” Id. at 1535; see also Jackson v. Roe, ___ F.3d
___, No. 02-56210, 2005 WL 2319679 (9th Cir. Sept. 23, 2005). Thus, the
habeas corpus analogy does not support the inflexible total exhaustion-
dismissal rule for which defendants argue.
14938 LIRA v. HERRERA
statutory provision to determine its proper scope” when the
text found to be ambiguous). Where, in contrast, the statutory
language and structure answer an interpretation question,
resorting to judicial evaluation of policy considerations is
inappropriate. Cf. Alexander v. Sandoval, 532 U.S. 275, 286-
87 (2001).
Even if we were to take policy considerations into account,
those considerations support our rejection of a total
exhaustion-dismissal rule. As noted above, in McKinney, we
concluded that § 1997e(a) demands dismissal of cases in
which there was no “presuit exhaustion,” 311 F.3d at 1200,
because a contrary result would mean that none of the benefits
of the exhaustion requirement would be realized. This reading
of the statute was appropriate despite the potential “expendi-
ture of additional resources on the part of the parties and the
court [because] it seem[ed] apparent that Congress has made
a policy judgment that this concern is outweighed by the
advantages of requiring exhaustion prior to the filing of suit.”
Id.
Such balancing yields a different result in this case, because
reading § 1997e(a) as a total exhaustion-dismissal rule would
not advance the primary policy goals of the PLRA. As identi-
fied by the Supreme Court, those goals are to “reduce the
quantity and improve the quality of prisoner suits,” by filter-
ing out frivolous claims, satisfying some grievances, and
developing an administrative record for use in cases that do
go forward. Porter v. Nussle, 534 U.S. 516, 524-25 (2002).
To dismiss an entire case that includes exhausted claims
would do little to discourage piecemeal litigation. A prisoner
who has filed an improper mixed complaint could often refile,
including this time only the properly exhausted claims, while
exhausting the remaining claims and filing another suit later.
See Bey, 407 F.3d at 811-12 (Clay, J., concurring in part and
dissenting in part); Ortiz, 380 F.3d at 658. Unlike for habeas
corpus cases, see 28 U.S.C. § 2244(b), there is no preclusion
LIRA v. HERRERA 14939
on filing more than one PLRA suit. Also, PLRA causes of
action joined in a single action may concern entirely indepen-
dent underlying factual circumstances, so that ordinary rules
of claim preclusion would not apply later. See Headwaters,
Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051-52 (9th Cir.
2005). The result could be a new suit, essentially identical to
the one dismissed, as the unexhausted claims would have
dropped out early anyway. Such a requirement would pro-
mote the precise inefficiency the PLRA was designed to avoid
— requiring courts to docket, assign and process two cases
where one would do.11
A total exhaustion-dismissal rule makes little practical
sense in the context of § 1983 prison condition actions for
another reason as well. The causes of action joined together
in a single suit may have little to do with each other, tempo-
rally or substantively. In this case, for example, Lira included
claims concerning asserted danger from other prisoners,
claims concerning law library access, and claims concerning
his assignment to administrative segregation and SHU. On
defendants’ submission, any one of these causes of action
would have had to be dismissed even if fully exhausted, if
another was not exhausted. Yet, exhausting one of these
causes of action would not help to satisfy the plaintiff, weed
out frivolous complaints, or develop an administrative record
with respect to the other two, entirely separate matters. That
is why, presumably, the district court was comfortable decid-
ing the merits of two of the unexhausted claims before even
considering the adequacy of exhaustion as to the third. Cf.
Ortiz, 380 F.3d at 653 (disposing of plaintiff’s supervisory
liability claim before considering exhaustion issue with
respect to underlying Eighth Amendment allegation). More-
over, if Lira had filed yet another grievance with regard to an
allegedly unconstitutional condition of confinement, he could
11
Moreover, the PLRA’s “three strikes” rule, 28 U.S.C. § 1915(g),
already discourages multiple lawsuits. See Bey, 407 F.3d at 812 (Clay, J.,
concurring in part and dissenting in part).
14940 LIRA v. HERRERA
have filed a separate action regardless of the fate of this suit.
Which claims are joined in a given PLRA lawsuit, in other
words, is largely up to the plaintiff. As a result, the goal of
avoiding piecemeal litigation is far less achievable than in the
habeas context, where a single conviction is at issue and
severe restrictions on second and successive petitions ordinar-
ily require that all challenges to that conviction be joined in
a single petition. See § 2244(b).
It is true, of course, as noted at the outset, that dismissal of
the action for lack of total exhaustion could result in an inabil-
ity to pursue the exhausted claim, because of a statute of limi-
tations barrier or inability to pay a second filing fee. But
imposition of such barriers with regard to properly brought
claims runs the risk of precluding meritorious, fully exhausted
claims so as to discourage the filing of nonmeritorious claims.
Any disincentive would be more properly directed at discour-
aging the later refiling of the unexhausted claims — and,
indeed, the “three strikes” provision to some degree serves
that purpose, by requiring the payment of a filing fee if a pris-
oner repeatedly files frivolous suits.
[9] In sum, with no danger that a prisoner can press forward
in this suit with unexhausted claims, see McKinney, 311 F.3d
at 1200, and thereby, in the words of the district court, use the
exhaustion of one claim as a “hook to have many unexhausted
claims considered in a federal civil rights action,” adoption of
a total exhaustion-dismissal rule would do nothing to advance
Congress’s policy goals. We conclude that the applicable pol-
icy considerations further buttress our determination that the
text and structure of the PLRA demonstrates that Congress
intended no special dismissal rules for § 1983 prisoner suits
in addition to those spelled out in § 1997e(c).
II. Proper Disposition of Mixed Complaints
Having rejected defendants’ suggestion that we adopt a
total exhaustion-dismissal rule, we are left with a more dis-
LIRA v. HERRERA 14941
crete question: how should district courts proceed in cases in
which the plaintiff has filed complaints with both exhausted
and unexhausted claims?
[10] In light of § 1997e(a)’s text and the policy rationales
surrounding its adoption and application according to Ninth
Circuit and Supreme Court law, we believe that a dual rule is
appropriate. We hold that the proper treatment of a mixed
complaint should depend on the relatedness of the claims con-
tained within.
[11] When a plaintiff has filed a “mixed” complaint and
wishes to proceed with only the exhausted claims, a district
court should simply dismiss the unexhausted claims when the
unexhausted claims are not intertwined with the properly
exhausted claims. This is likely to be the ordinary case in
PLRA suits, where plaintiffs often raise several unrelated
claims in a single lawsuit. See Ortiz, 380 F.3d at 661 (noting
that § 1983 suits “routinely seek to address more than one
grievance — sometimes a laundry list of grievances — relat-
ing to different events or circumstances”). Here, for example,
Lira raised some issues that had nothing to do with his gang
status or administrative segregation confinement. The district
court addressed those issues on the merits and resolved them,
considering the total exhaustion-dismissal rule only thereafter.
We note the contrast in this regard to cases in the habeas
context. While habeas petitions may contain various claims
that rest on different constitutional provisions, they all revolve
around one incident: the defendant’s conviction. See Mayle v.
Felix, 125 S. Ct. 2562, 2570 (2005) (holding that a claim aris-
ing out of the same trial or sentence is insufficient to meet
Rule 15’s same “conduct, transaction, or occurrence” test
because “federal habeas claims, by their very nature, chal-
lenge the constitutionality of a conviction or sentence”). This
fact was of particular concern to the Supreme Court when it
adopted a total exhaustion-dismissal rule for mixed habeas
petitions in Rose. The Court noted that “[r]equiring dismissal
14942 LIRA v. HERRERA
of petitions containing both exhausted and unexhausted
claims will relieve the district courts of the difficult if not
impossible task of deciding when claims are related, and will
reduce the temptation to consider unexhausted claims.” Rose,
455 U.S. at 519. This consideration is inapplicable when a
prisoner’s PLRA complaint contains markedly different
claims. In that instance, a district court will be able to deter-
mine with relative ease which claims have been exhausted
and which still need to be presented to prison officials. Under
such circumstances, there will not often be any danger that an
unexhausted claim will be implicitly decided while addressing
an exhausted one.
On the other hand, when a plaintiff’s “mixed” complaint
includes exhausted and unexhausted claims that are closely
related and difficult to untangle, dismissal of the defective
complaint with leave to amend to allege only fully exhausted
claims, is the proper approach. This is the procedure pre-
scribed for mixed habeas petitions by the Supreme Court in
Rose. Although Rose adopted a total exhaustion-dismissal
rule, the Supreme Court, as noted, made clear that dismissal
of an entire action is not always necessary. Instead, a peti-
tioner should be allowed to “amend the petition to delete
unexhausted claims, rather than returning to state court to
exhaust all of his claims.” Id. at 520 (plurality op.); see also
James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000) (noting
that, after Rose, courts have long required only dismissal of
a partially defective habeas petition, rather than of the entire
case).12
12
The Supreme Court recently reaffirmed the Rose rule that a petitioner
can always amend his petition “to delete the unexhausted claims.” Rhines
v. Weber, 125 S. Ct. 1528, 1535 (2005). A significant portion of the opin-
ion in Rhines was devoted to analyzing how the one-year statute of limita-
tions period applicable to habeas petitions could work in conjunction with
the total exhaustion requirement to bar any relief. Id. at 1533-34. The
opinion for the Court noted that “the court should allow the petitioner to
delete the unexhausted claims and to proceed with the exhausted claims
if dismissal of the entire petition would unreasonably impair the petition-
er’s right to obtain federal relief,” id. at 1535, thereby providing guidance
to district courts to be especially mindful of timeliness concerns when
dealing with attempts to amend mixed petitions.
LIRA v. HERRERA 14943
[12] Although we have noted that the analogy to habeas
cases has limited applicability in the PLRA context, when a
§ 1983 suit contains interrelated claims, as habeas petitions
invariably do, the concern regarding separating exhausted
from unexhausted claims alluded to in Rose is relevant. For
that reason, when a district court is faced with a mixed com-
plaint containing claims that are closely related, the court
should follow the approach set forth in Rose and its progeny:
dismiss the complaint and allow the plaintiff the opportunity
to amend his complaint to excise the unexhausted claims.
In following this procedure, we expect that district courts
will exercise their usual discretion in granting leave to amend
such defective complaints. See FED. R. CIV. P. 15(a); Lopez,
203 F.3d at 1130-31. We note, however, that “[l]eave to
amend should be granted unless the pleading ‘could not possi-
bly be cured by the allegation of other facts,’ and should be
granted more liberally to pro se plaintiffs.” Ramirez v.
Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (quoting Lopez,
203 F.3d at 1130, 1131), cert. denied, 124 S. Ct. 2388 (2004).
III. Lira’s Case
[13] The resolution of this case thus largely boils down to
a question of whether it will be the district court or the pris-
oner who excises the unexhausted claims, either through dis-
missal or amendment, respectively. The district court’s
dismissal of Lira’s case turned on its implicit, but not fully
discussed, interpretation of Lira’s complaint as presenting
multiple claims regarding his validation as a Northern Struc-
ture gang member. It correlated the number of grievances
filed within the California prison system with the number of
claims within his complaint, and therefore did not regard his
complaint as presenting a single due process claim challeng-
ing the unavailability of the evidence used against him and
resulting in his placement and retention in administrative seg-
regation.
14944 LIRA v. HERRERA
[14] Lira has argued to this court, having received counsel
since his last appearance in district court, that his complaint
actually presents “a constellation of due process violations for
his validation as a gang associate and his placement and reten-
tion in the administrative segregation at [DVI] and the SHU
at Pelican Bay” that amounted to a single, exhausted claim.13
Given that the district court considered Lira’s case under the
misapprehension that dismissal of the entire action was man-
dated if the complaint was partially defective, we remand to
the district court for further proceedings. If the district judge
again determines that Lira’s due process claim consists of
both exhausted and unexhausted claims that are intertwined,
the proper course of action is for the district court (1) to allow
Lira to amend his complaint so that it refers to only his fully
exhausted 1996 grievance, and (2) to consider, on the merits,
whether Lira states a viable due process claim on the basis of
his fully exhausted 1996 grievance.
REVERSED AND REMANDED.
13
Although we recognize that there is force to Lira’s argument, we leave
it to the district court to consider this new characterization of Lira’s due
process claim in the first instance.