CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
Plaintiff and Appellant,
(Super. Ct. No.
STATE OF CALIFORNIA et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Sacramento
County, Thomas M. Cecil, J. Affirmed.
William E. Gilg for Plainiff and Appellant.
Bill Lockyer, Attorney General, Darryl L. Doke, Thomas D.
McCrackin, and Kevin W. Reager, Deputy Attorneys General, for
Defendants and Respondents.
Plaintiff Justin Wright appeals from a judgment of
dismissal in favor of the State of California, the Department of
Corrections and certain administrative and medical personnel in
that department (collectively, the State).
The trial court
granted the State’s demurrer to Wright’s complaint alleging
medical malpractice and failure to furnish medical care.
affirm the judgment.
We conclude, as did the trial court, that Wright cannot
maintain this action because he failed to exhaust his available
Wright concedes that he has not
completed the administrative process provided by the Department
of Corrections (Department).
Although money damages are
unavailable in the administrative process, Wright must exhaust
his administrative remedies before seeking judicial relief.
Even where money damages are unavailable, the exhaustion
requirement furthers important interests:
mitigating damages, application of Department expertise, and
order in the court system.
We also conclude the State is immune
from suit for intentional infliction of emotional distress and
Wright is a state prison inmate.
Beginning August 22,
2001, he alleges, the State improperly denied him timely medical
care to repair two detached retinas, resulting in extensive loss
Specifically, from August 22, 2001, to September 3,
2001, the State failed to provide him with any medical
In addition, after a doctor examined him on
September 4, 2001, the State denied him timely surgery to repair
the two detached retinas, despite the recommendations of three
Finally, after his surgery on October 31, 2001, the
State failed to provide the medications prescribed for his
Wright alleges six counts:
two on federal law.
four based on state law, and
Under state law, he alleges medical
malpractice (count one), failure to furnish medical care (count
two), intentional infliction of emotional distress (count
three), and negligence (count four) (collectively, the state
Under federal law, he alleges deliberate indifference
to serious medical needs (count five), and cruel and unusual
punishment (count six) (collectively, the federal counts).
In his complaint, Wright alleges that on March 31, 2002, he
filed a government tort claim with the State Board of Control,
which the board rejected on May 10, 2002.
Wright also alleges that he has exhausted his
Although Wright asserts the State
denied him medical care beginning on August 22, 2001, he did not
start the administrative process until March 24, 2002.
had not received his final administrative decision (third level
review) by the time he filed his first amended complaint on
December 13, 2002, the operative pleading here.
by regulation, normally has 60 working days to complete the
third level review.
(Cal. Code Regs., tit. 15, § 3084.6, subd.
According to Wright, the “time limit is way past since
[he] began his appeal process on March 24, 2002.
As a result
[he] has substantially complied with the administrative
exhaustion requirement of Title 42 of the United States Code,
Undesignated section references are to Title 15 of the
California Code of Regulations unless otherwise noted.
section 1997e” (italics added) and has “exhausted his
The State demurred to Wright’s entire complaint, asserting
his failure to exhaust administrative remedies, and asked the
trial court to dismiss the complaint without prejudice.
State and the Department demurred to Wright’s third and fourth
counts (intentional infliction of emotional distress and
negligence), claiming public entity immunity for those counts
and asking the trial court to dismiss those counts with
The trial court granted the demurrers, and Wright
Because we are reviewing a demurrer sustained without leave
to amend, we treat the complaint’s properly pled material facts
(Zelig v. County of Los Angeles (2002) 27 Cal.4th
Exhaustion of Administrative Remedies
Wright Must Exhaust His Administrative Remedies
Wright contends that he need only substantially comply with
the requirement to exhaust administrative remedies.
contention is without merit.
Under both state and federal law,
a prisoner must exhaust available administrative remedies before
seeking judicial relief.
By 1941, as a rule of general
application, state courts required litigants to exhaust their
(E.g., Abelleira v. District Court of
Appeal (1941) 17 Cal.2d 280, 291-296 (Abelleira); McHugh v.
County of Santa Cruz (1973) 33 Cal.App.3d 533, 538-539
The exhaustion requirement is jurisdictional:
court cannot hear a case before a litigant exhausts
(Abelleira, supra, 17 Cal.2d at pp.
291-293; McHugh, supra, 33 Cal.App.3d at p. 539.)
Beginning in the 1960’s, prisoners, often through advocacy
groups, began using state and federal courts, including
California courts, to reform jail and prison conditions.
(Feeley & Rubin, Judicial Policy Making and the Modern State:
How the Courts Reformed America’s Prisons (2000) pp. 34-50
(Judicial Policy Making); Judicial Intervention in Corrections:
The California Experience -- An Empirical Study (1973) 20 UCLA
L.Rev. 452, 455 [no author named].)
In many states, including
California, courts virtually took over the day-to-day operation
of jails and prisons.
(See, e.g., Judicial Policy Making,
supra, at pp. 111-128 [detailing Santa Clara County’s jail
Prisoner filings increased in the ensuing decades.
1980, prisoners filed 23,230 petitions in federal courts.
(Sullivan, Prisoners Seeking Monetary Relief for Civil Rights
Must They Exhaust Administrative Remedies Under §
1997e before Filing a Claim in Federal Court? (2002) 8 Wash. U.
J.L. & Pol’y 419, 421, fn. 14.)
By 1996, that number tripled to
According to a 1994 report, inmate
suits accounted for 55 percent of all suits filed against the
State of California.
the Federal Courts:
(Mueller, Inmates’ Civil Rights Cases and
Insights Derived From a Field Research
Project in the Eastern District of California (1995) 28
Creighton L.Rev. 1255, 1278, fn. 91 (Inmates’ Civil Rights
In the 1970’s, California’s state courts specifically
applied the general exhaustion requirement to prisoner suits,
requiring prisoners to exhaust administrative remedies before
seeking judicial relief.
For example, courts applied the
general rule that “a litigant will not be afforded relief in the
courts unless and until he has exhausted available
administrative remedies” to prisoners seeking access to their
(In re Muszalski (1975) 52 Cal.App.3d 500, 503
(Muszalski); accord In re Thompson (1975) 52 Cal.App.3d 780, 783
Moreover, the California Supreme Court held that
“[t]he requirement that administrative remedies be exhausted
‘applies to grievances lodged by prisoners.’”
re Dexter (1979) 25 Cal.3d 921, 925.)
Under state law, “‘exhaustion of the administrative remedy
is a jurisdictional prerequisite to resort to the courts.’”
(Rojo v. Kliger (1990) 52 Cal.3d 65, 85 (Rojo); accord Karlin v.
Zalta (1984) 154 Cal.App.3d 953, 979 (Karlin).)
‘The administrative tribunal is created by law to
adjudicate the issue sought to be presented to the court.
claim or ‘cause of action’ is within the special jurisdiction of
the administrative tribunal, and the courts may act only to
review the final administrative determination.
If a court
allowed a suit to be maintained prior to such final
determination, it would be interfering with the subject matter
jurisdiction of another tribunal.’”
(Rojo, supra, 52 Cal.3d at
p. 85, italics in original, quoting 3 Witkin, Cal. Procedure (3d
ed. 1985) Actions, § 234, p. 265.)
Paralleling the exhaustion requirement under state law, the
federal Prison Litigation Reform Act (PLRA) provides that “[n]o
action shall be brought with respect to prison conditions under
[42 U.S.C.A.] section 1983 . . . or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
(42 U.S.C.A. § 1997e(a) [amended in 1996 by the
Congress passed the PLRA to curtail frivolous prisoner
(Porter v. Nussle (2002) 534 U.S. 516, 522 [152
L.Ed.2d 12, 20] (Porter).)
Before enactment of the PLRA in
1996, lawsuits by prisoners were a significant percentage of the
civil docket of the federal courts.
(Inmates’ Civil Rights
Cases, supra, 28 Creighton L.Rev. at p. 1307.)
In 1995 alone,
prisoners filed nearly 40,000 new suits, amounting to 19 percent
of the federal civil docket.
(Schlanger, Inmate Litigation
(2003) 116 Harv. L.Rev. 1555, 1558.)
state were no exception.
Federal courts in this
In 1995, “inmates’ civil rights
actions constitute[d] nearly 30% of the case filings” in the
Eastern District of California.
(Inmates’ Civil Rights Cases,
supra, 28 Creighton L.Rev. at p. 1259.)
The exhaustion of administrative remedies requirement
furthers several important societal and governmental interests.
These include bolstering administrative autonomy, mitigating
damages, giving agencies opportunity to make factual findings,
encouraging settlement, filtering out frivolous claims,
fostering better prepared litigation, and promoting judicial
(Booth v. Churner (2001) 532 U.S. 731, 737 [149
L.Ed.2d 958, 964] (Booth); Rojo, supra, 52 Cal.3d at pp. 83-86.)
In addition, the requirement ensures “the use of administrative
agency expertise and capability to order and monitor corrective
(Rojo, supra, 52 Cal.3d at p. 83.)
Here, state law provides an administrative remedy.
regulation promulgated by the Department, a prison inmate may
appeal any departmental decision, action, condition, or policy
adversely affecting the inmate’s welfare.
(§ 3084.1, subd. (a);
Pen. Code, § 5058; Muszalski, supra, 52 Cal.App.3d at pp. 506508; Thompson, supra, 52 Cal.App.3d at p. 783.)
This administrative appeal process generally consists of
four levels of review:
an informal review followed successively
by three formal reviews.
(§ 3084.5, subds. (a) - (e).)
Department must complete its informal level review within 10
working days, its first formal level review within 30 working
days, and its second formal level review within 20 working days.
(§ 3084.6, subds. (a) - (b).)
Normally, the Department must
complete the third formal level review within 60 working days.
(Id. subd. (b)(4).)
There are exceptions that can extend these
time limits, including the complexity of the decision, action,
(§ 3084.6, subd. (b)(5)(B).)
If an exceptional
delay prevents the Department from completing a level of review
within the specified time limits, the Department must notify the
inmate in writing of the reasons for the delay and the estimated
(Id. subd. (b)(6).)
This notice requirement
does not apply, however, to the third formal level review.
Despite the state and federal exhaustion requirements,
Wright alleges that his substantial compliance with the
exhaustion requirement is adequate because the Department had
not resolved his third formal level review at the time he filed
his first amended complaint.
All that Wright alleges in support
of his claim, however, is that since he filed his first amended
complaint on December 13, 2002, the “time limit is way past
since [he] began his appeal process on March 24, 2002.”
shall explain, this allegation is insufficient.
supra, 52 Cal.App.3d at p. 783 [petition for writ of habeas
corpus denied in part because inmate failed to allege specific
facts showing that the Department’s administrative process was
an unavailable or ineffective remedy excusing him from the
exhaustion requirement]; see also Muszalski, supra, 52
Cal.App.3d at p. 508 [petition for writ of habeas corpus denied
because inmate’s allegation that the Department’s review process
did not guarantee a timely decision was insufficient to excuse
him from the exhaustion requirement].)
Wright failed to exhaust his available administrative
remedy because, as he acknowledges, his third formal level
review had not been resolved at the time he filed his first
An inmate who has not completed the review
process provided under section 3084.1, subdivision (a) has not
exhausted the available administrative remedies.
(See In re
Serna (1978) 76 Cal.App.3d 1010 [inmate did not exhaust
available administrative remedies because he did not request a
third level review under the Department’s inmate appeals process
preceding that provided by § 3084.1].)
Moreover, the Department’s delay does not excuse Wright’s
failure to exhaust his available administrative remedies.
Wright has not specifically alleged that the Department has
delayed his third formal level review beyond the 60-day term.
The remedy for an unreasonable delay is not a suit for damages,
but a writ of mandate ordering the Department to perform its
duty by completing the review.
(See Wasko v. Department of
Corrections (1989) 211 Cal.App.3d 996 [recognizing that
Department is subject to writ of mandate, but denying writ
because inmate requested hearings to which he was not
In addition, Wright’s claims for medical malpractice and
failure to furnish medical care arguably involve a complex
decision, action, or policy, one of the exceptions that can
extend the time limits for administrative response.
This exception could extend the time limit
for the third formal level review without the need for a written
statement or an estimated completion date.
(§ 3084.6, subd.
We conclude, then, that Wright has failed to exhaust
his administrative remedies.
We note, however, that both due process and the requirement
of an effective administrative remedy limit the time the
Even Though Damages Are Unavailable, Prisoners Must
Exhaust Their Administrative Remedies
Regarding his state law counts, Wright also claims that he
need not exhaust his administrative remedies because he seeks
only money damages, which the administrative process cannot
Even in these circumstances, we hold that Wright must
exhaust his administrative remedies.
Under state law, inmates are required to exhaust
administrative remedies, even when seeking money damages
unavailable in the administrative process.
Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 476
(Westlake) [even though money damages were unavailable, doctor
must exhaust hospital’s administrative remedies before filing
Some intermediate California courts have stated that an
administrative remedy is unavailable where a plaintiff seeks
money damages unavailable in the administrative process.
(Karlin, supra, 154 Cal.App.3d at p. 980 [but holding that
although they sought money damages, plaintiffs must exhaust
available administrative remedies].)
However, even though the
administrative process may not provide the precise relief a
plaintiff requests, courts have held there are salutary reasons
for requiring exhaustion of administrative remedies.
For example, in Westlake, supra, 17 Cal.3d at page 476, the
Department has to complete an exceptional third formal level
review. (See Thompson, supra, 52 Cal.App.3d at p. 783 [noting
that exhaustion is not required where an effective remedy is
lacking].) Thus, the Department must complete an exceptional
third level review within a reasonable period.
Supreme Court held that “even if the absence of an internal
damage remedy makes resort to the courts inevitable [citation],
the prior administrative proceeding will still promote judicial
efficiency by unearthing the relevant evidence and by providing
a record which the court may review.”
Reconciling these two
competing principles requires “a qualitative analysis on a caseby-case basis with concentration on whether a paramount need for
agency expertise outweighs other factors.”
(Karlin, supra, 154
Cal.App.3d at p. 981; accord, Rojo, supra, 52 Cal.3d at pp. 8788.)
Weighing the factors leads us to apply the exhaustion
Notably, the United States Supreme Court held that
prisoners seeking money damages must exhaust available
administrative remedies, even when damages are unavailable.
(Booth, supra, 532 U.S. at p. 733 [under 42 U.S.C.A. § 1997e(a)
[even though he only sought money damages unavailable in the
administrative process, state prisoner must complete prison
administrative process before filing a federal claim].)
The judiciary defers to prison administration.
v. Superior Court (2000) 79 Cal.App.4th 1000, 1013-1014
[recognizing United States Supreme Court’s deference to prison
Thus, we defer to prison administrators to
resolve prisoner grievances.
at p. 508.)
(Muszalski, supra, 52 Cal.App.3d
Allowing prisoners deliberately to avoid the
Department’s administrative process by asking only for money
damages, a remedy unavailable in the administrative process,
would weaken the effectiveness of the Department by encouraging
inmates to ignore its grievance resolution procedures.
Requiring prisoners to exhaust the Department’s
administrative process may mitigate damages.
52 Cal.App.3d at p. 506; see Williams v. Housing Authority of
Los Angeles (2004) 121 Cal.App.4th 708, 722 (Williams) [the
exhaustion requirement gives an administrative agency
opportunity to redress the alleged wrong]; Rojo, supra, 52
Cal.3d at pp. 83-86 [administrative process of Fair Employment
and Housing Act (FEHA) mitigates damages].)
In fact, to ensure
that it has an opportunity to mitigate the damages of prisoners
who would suffer serious and irreparable harm without expedited
review, such as those needing medical care, the Department has
an expedited emergency review process.
Exhausting the administrative process in this case would
also take advantage of the Department’s expertise to make
findings of fact, apply the law to the facts, and provide a
record for the courts to review.
(See Muszalski, supra, 52
Cal.App.3d at p. 505 [Department’s administrative process
necessary to develop the factual background, apply the law in
the first instance, and give opportunity for the Department to
exercise discretion and expertise]; see also Williams, supra,
121 Cal.App.4th at p. 722 [FEHA’s administrative process
promotes agency expertise and development of complete record].)
The utility of the department’s fact-finding expertise
exists even when the plaintiff’s requested relief is unavailable
through the administrative process.
Thus, in County of Contra
Costa v. State of California (1986) 177 Cal.App.3d 62, at pages
75-78, and footnote 8, we held that because of the utility of
administrative fact-finding, plaintiff was required to exhaust
his administrative remedies before raising a constitutional
challenge to a statute, even though the administrative agency
could not declare the statute unconstitutional.
Moreover, the exhaustion requirement ensures the orderly
administration of the judicial system.
requirement prevents the chaos of a multiplicity of actions and
potentially conflicting decisions.
(Muszalski, supra, 52
Cal.App.3d at p. 505; Olson v. County of Sacramento (1974) 38
Cal.App.3d 958, 965 (Olson).)
Administrative review filters out
frivolous lawsuits, preserving the resources of the courts.
(Porter, supra, 534 U.S. at p. 525; Booth, supra, 532 U.S. at p.
A court reviews the administrative decisions; thus, the
court is not required to develop a record or define the issues
(Williams, supra, 121 Cal.App.4th at p. 722.)
Finally, while Wright’s multiple causes of action
complicate this case, enforcing his obligation to exhaust
available administrative remedies is not an impediment to a
(See Rojo, supra, 52 Cal.3d at pp. 83-84 [FEHA’s
administrative remedy not an impediment to civil suit].)
illustration, Wright had no reason to fear that the statute of
limitations governing either his federal or state counts would
expire during the time necessary to exhaust his administrative
The statute of limitations would not bar Wright’s
(42 U.S.C.A. § 1997e; Brown v. Morgan (6th Cir.
2000) 209 F.3d 595, 596; Harris v. Hegmann (1999) 198 F.3d 153,
Neither the statute of limitations for medical malpractice,
nor the time limit for filing suit after rejection of a
government tort claim, would bar his state counts.
litigant would usually have one year from the time the litigant
discovered the injury to file suit for medical malpractice.
(Code Civ. Proc., § 340.5.)
A prisoner, however, would have up
to three years to file suit for medical malpractice.
Bowers Ambulance Service (1999) 20 Cal.4th 928 [holding that
Code Civ. Proc., § 352.1 extends the time which a prisoner has
to file a medical malpractice suit under Code Civ. Proc., §
340.5 to the three-year maximum].)
Second, in his complaint, Wright alleges that on March 31,
2002, as required by Government Code section 905.2, he filed a
government tort claim, which the Board of Control rejected on
May 10, 2002.
Usually, a person would have six months from the
rejection of such a claim to file a court action.
945.6, subd. (a)(1).)
(Gov. Code, §
This six-month time limit may have
prompted Wright to file his original complaint on November 7,
However, since a litigant must exhaust administrative
remedies before filing a court action, we exclude the time
consumed by the administrative proceeding from the time limits
that apply to pursuing the court action.
(E.g., Baillargeon v.
Department of Water & Power (1977) 69 Cal.App.3d 670, 682-684
(Baillargeon); Olson, supra, 38 Cal.App.3d at p. 965; Myers v.
County of Orange (1970) 6 Cal.App.3d 626, 634-637 (Myers);
Witkin, Cal. Procedure (4th ed. 1996) Actions, § 659, pp. 841843.)
This procedure serves the orderly administration of
(E.g., Baillargeon, supra, 69 Cal.App.3d at p. 683;
Olson, supra, 38 Cal.App.3d at p. 965; Myers, supra, 6
Cal.App.3d at p. 634.)
Thus, we exclude the time during which a
litigant reasonably pursues his administrative remedy from the
six-month time limit for filing a court action after the Board
of Control rejects a government tort claim.
(Gov. Code, §
945.6, subd. (a)(1).)
In short, then, we conclude that when Wright filed his
complaint, an administrative remedy was still available.
has conceded, in his complaint, that he failed to exhaust this
administrative remedy; he went to court after only
“substantially compl[ying]” with the exhaustion requirement.
The trial court, therefore, properly sustained without leave to
amend the State’s demurrer to Wright’s complaint, dismissing the
complaint without prejudice.
Public Entity Immunity
The trial court dismissed with prejudice Wright’s
intentional infliction of emotional distress and negligence
causes of action against the State and the Department, based on
their immunity from suit as public entities.
Wright argues the
State and the Department are liable by statute for his injuries.
As noted in Zuniga v. Housing Authority (1995) 41
Cal.App.4th 82 (Zuniga), “[a] public entity is not liable for
tortious injury unless the liability is imposed by statute.
(Gov. Code, § 815.)
‘Moreover, under subdivision (b) of
section 815, the immunity provisions of the California Tort
Claims Act . . . will generally prevail over any liabilities
established by statute.
In short, sovereign
immunity is the rule in California; governmental liability is
limited to exceptions specifically set forth by statute.’”
at p. 92, quoting Cochran v. Herzog Engraving Co. (1984) 155
Cal.App.3d 405, 409, fn. omitted; accord, Allyson v. Department
of Transportation (1997) 53 Cal.App.4th 1304, 1313.)
Consequently, the general rule is that a public entity is
not liable unless a statute imposes liability.
Wright points to
a general liability statute, section 815.2, subdivision (a),
which provides that a public entity is liable if its employee is
As Wright acknowledged at oral argument, there are two
immunity provisions of the California Tort Claims Act
specifically related to a public entity’s immunity for a
prisoner’s medical care.
(Zuniga, 41 Cal.App.4th at p. 92
[immunity provisions prevail over statutory liabilities]; see
Estate of Mason (1990) 224 Cal.App.3d 634, 638 [a specific
statute takes precedence over a general statute].)
provisions provide that “a public entity is not liable for . . .
References to undesignated sections in this part of the
discussion are to the Government Code.
[a]n injury to any prisoner.”
(§ 844.6, subd. (a)(2).)
public entity also is not “liable for injury proximately caused
by the failure of the employee to furnish or obtain medical care
for a prisoner . . . .”
The State and the Department, as public entities, are
immune from liability for Wright’s counts of intentional
infliction of emotional distress and negligence.
court properly sustained the demurrer as to these counts and
dismissed them with prejudice.
The judgment is affirmed.
(CERTIFIED FOR PUBLICATION.)
, Acting P.J.