Lira v. Herrera

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.