Vaden v. Summerhill ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNEST LEE VADEN, 
Plaintiff-Appellee, No. 05-15650
v.
 D.C. No.
CV-03-02290-LKK
K. SUMMERHILL; R. L. GOWER; ST.
ANDRE; CHAPMAN; W. A. DUNCAN, OPINION
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Submitted March 17, 2006*
San Francisco, California
Filed June 6, 2006
Before: Pamela Ann Rymer, William A. Fletcher, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a).
6185
VADEN v. SUMMERHILL 6187
COUNSEL
Bill Lockyer, James M. Humes, Frances T. Grunder, James E.
Flynn, Kelli M. Hammond, Office of the Attorney General of
the State of California, Sacramento, California, for the
defendants-appellants.
Ernest Lee Vaden, Susanville, California, plaintiff-appellee,
pro se.
OPINION
CLIFTON, Circuit Judge:
Prisoners frequently file lawsuits in federal court regarding
prison conditions. The Prison Litigation Reform Act of 1995
(“PLRA”), in 42 U.S.C. § 1997e(a), requires that a prisoner
exhaust available administrative remedies before bringing
these actions. In this case, a California state prisoner sent a
complaint to the district court before he had exhausted his
administrative remedies within the state prison system. He
did, however, exhaust those remedies by the time the district
court granted him permission to file his complaint in forma
pauperis under 28 U.S.C. § 1915. The district court concluded
that the prisoner satisfied the PLRA’s exhaustion requirement
in those circumstances. We conclude, however, that the
PLRA requires that a prisoner exhaust administrative reme-
dies before submitting any papers to the federal courts.
Because the prisoner here has not met that requirement, this
action must be dismissed without prejudice.
6188 VADEN v. SUMMERHILL
I. BACKGROUND
The California Department of Corrections provides a four-
step grievance process for prisoners who seek review of an
administrative decision or perceived mistreatment: an infor-
mal level, a first formal level, a second formal level, and the
Director’s level. Brown v. Valoff, 422 F.3d 926, 929-30 (9th
Cir. 2005) (citing Cal. Code Regs., tit. 15 §§ 3084.5(a),
3084.5(e), 3084.6(c)).
Ernest Lee Vaden, an inmate at High Desert State Prison,
a California state facility, submitted an Inmate/Parolee Appeal
Form (“CDC 602”) alleging misconduct by Defendants
Gower, Chapman, and St. Andre, all prison employees. His
inmate appeal bypassed the informal level of review, was par-
tially granted at the first formal level of review, was partially
granted at the second formal level of review, and was denied
at the Director’s level of review.
While his grievance was still pending before the Director,
on November 3, 2003, Vaden sent a complaint to the district
court requesting relief under 42 U.S.C. § 1983 against Defen-
dants Summerhill,1 Gower, St. Andre, Chapman, and Duncan.2
Vaden also sought permission to proceed in forma pauperis.
On March 10, 2004, by which time the administrative review
1
Defendant Summerhill is also a prison employee. In his CDC 602,
Vaden alleged that only Defendants Gower, St. Andre, and Chapman com-
mitted misconduct, and stated that he merely relayed his concerns to Sum-
merhill. Accordingly, in responding to his grievance, prison administrators
addressed only Gower, St. Andre, and Chapman’s alleged misconduct and
did not mention Summerhill. Vaden identified Summerhill as a subject of
his grievance for the first time in his federal court complaint.
2
Defendant Duncan is the Assistant Director of the California Depart-
ment of Corrections. Vaden did not name him in his CDC 602, and in
responding, prison administrators accordingly did not mention Duncan. In
his federal court complaint, Vaden brought Duncan in for the first time,
alleging that he was liable for having promulgated the state’s prison poli-
cies.
VADEN v. SUMMERHILL 6189
process had been concluded, the district court granted
Vaden’s motion to proceed in forma pauperis, and his com-
plaint was formally filed.
Defendants moved to dismiss the complaint for failure to
exhaust administrative remedies. The magistrate judge recom-
mended that the motion be denied, explaining that Vaden had
exhausted administrative remedies against all3 of the Defen-
dants by the time the court authorized the filing of his com-
plaint in forma pauperis. The district court adopted that
recommendation. Defendants’ challenge to the denial of their
motion to dismiss has been certified for interlocutory appeal
under 28 U.S.C. § 1292(b).
II. DISCUSSION
This court reviews de novo the district court’s interpretation
of 42 U.S.C. § 1997e(a)’s exhaustion requirement. See Roles
v. Maddox, 439 F.3d 1016, 1017 (9th Cir. 2006).
[1] As amended by the PLRA, 42 U.S.C. § 1997e(a) 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.” (emphasis added). At issue is the precise point in
the proceedings at which an action is “brought.”
3
In their submissions to the district court and this court, Defendants
appeared to agree that Vaden pursued administrative remedies as to
Defendants Summerhill and Duncan as well, and that was the apparent
understanding of the district court. As noted above, in notes 1 and 2, our
review of the record suggests otherwise. If, in fact, Vaden sought relief
within the prison grievance system only as to Defendants Gower, St.
Andre, and Chapman, then it would appear that he failed to exhaust his
remedies against Summerhill and Duncan, regardless of the outcome of
this appeal. We need not resolve that factual question here.
6190 VADEN v. SUMMERHILL
Vaden argues, and the district court agreed, that an action
is “brought” when it is “filed,” which in this case occurred
well after Vaden submitted the complaint. The complaint was
formally filed when the district court authorized the “com-
mencement . . . of [the] suit . . . without prepayment of fees”
under 28 U.S.C. § 1915, the in forma pauperis statute. Defen-
dants argue in contrast that an action is “brought” when a
prisoner first submits it to the district court.
[2] In most civil actions, the submission and filing of a
complaint are simultaneous events. That is not the case when
a prisoner submits a complaint with an application to proceed
in forma pauperis, where there is normally a gap in time
between the submission of the complaint and its filing. This
is so because the district court needs time both to review the
in forma pauperis application and to screen the substance of
the complaint. See, e.g., 28 U.S.C. § 1915A(b) (authorizing
the district court to dismiss prisoner complaints that are “friv-
olous, malicious, or fail[ ] to state a claim upon which relief
may be granted; or seek[ ] monetary relief from a defendant
who is immune from such relief”).
[3] Mindful of this context, the Seventh Circuit has held
that “an action is ‘brought’ for purposes of § 1997e(a) when
the complaint is tendered to the district clerk,” and not when
it is subsequently filed. Ford v. Johnson, 362 F.3d 395, 400
(7th Cir. 2004). We agree with the Seventh Circuit’s analysis
and adopt its holding as our own.
[4] The word “brought” properly focuses attention on what
the prisoner-plaintiff does. The complaint is “brought” by the
prisoner when he submits it to the court. Accordingly, the
prisoner must have entirely exhausted administrative remedies
by this point. As the Seventh Circuit observed, Congress may
have selected the word “brought,” rather than “filed” or “com-
menced,” to underscore its objectives in enacting the PLRA.
Id. at 399. The Supreme Court has described those objectives:
VADEN v. SUMMERHILL 6191
Beyond doubt, Congress enacted § 1997e(a) to
reduce the quantity and improve the quality of pris-
oner suits; to this purpose, Congress afforded correc-
tions officials time and opportunity to address
complaints internally before allowing the initiation
of a federal case. In some instances, corrective action
taken in response to an inmate’s grievance might
improve prison administration and satisfy the
inmate, thereby obviating the need for litigation. . . .
In other instances, the internal review might “filter
out some frivolous claims.” And for cases ultimately
brought to court, adjudication could be facilitated by
an administrative record that clarifies the contours of
the controversy.
Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (citing Booth
v. Churner, 532 U.S. 731, 737 (2001)). Thus, “brought” must
mean “ ‘got under way’ or some similar phrase [to ensure]
that the litigation process does not start until the administra-
tive process has ended.” Ford, 362 F.3d at 399.
This holding is also guided by our own previous assess-
ment of § 1997e(a): “[P]resuit exhaustion provides a strong
incentive that will further these Congressional objectives; per-
mitting exhaustion pendente lite will inevitably undermine
attainment of them.” McKinney v. Carey, 311 F.3d 1198,
1200-01 (9th Cir. 2002) (per curiam). In McKinney, the pris-
oner had not yet exhausted his administrative remedies by the
time he filed his complaint in federal court, but was in the
process of doing so when a motion to dismiss was filed. The
prisoner asked the district court to stay the proceedings so that
he could satisfy the exhaustion requirement. The district court
declined to do so, and we affirmed, holding that dismissal was
required because the exhaustion requirement was mandatory.
The same holds true here. As the Seventh Circuit noted in
Ford, exhaustion requirements are common and they are rou-
tinely enforced “by dismissing a suit that begins too soon,
6192 VADEN v. SUMMERHILL
even if the plaintiff exhausts his administrative remedies
while the litigation is pending.” 362 F.3d at 398.
The bottom line is that a prisoner must pursue the prison
administrative process as the first and primary forum for
redress of grievances. He may initiate litigation in federal
court only after the administrative process ends and leaves his
grievances unredressed. It would be inconsistent with the
objectives of the statute to let him submit his complaint any
earlier than that.
[5] Because Vaden did not exhaust his administrative reme-
dies prior to sending his complaint to the district court, the
district court must dismiss his suit without prejudice. See
Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).
REVERSED AND REMANDED.