Weaver v. Director et al

Filing 3

ORDER DISMISSING Action, without Prejudice, for Failure to Exhaust Prior to Filing Suit. CASE CLOSED signed by Judge Anthony W. Ishii on 10/3/2006. (Timken, A)

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(PC) Weaver v. Director et al Doc. 3 Case 1:06-cv-01308-AWI-LJO Document 3 Filed 10/04/2006 Page 1 of 2 1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 Defendants. 14 15 Plaintiff Willie Weaver ("plaintiff") is a state prisoner proceeding pro se in this civil rights 16 action pursuant to 42 U.S.C. 1983. Plaintiff filed this action on September 20, 2006, but has not 17 18 Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with 19 respect to prison conditions under [42 U.S.C. 1983], or any other Federal law, by a prisoner 20 confined in any jail, prison, or other correctional facility until such administrative remedies as are 21 available are exhausted." 42 U.S.C. 1997e(a). The section 1997e(a) exhaustion requirement 22 applies to all prisoner suits relating to prison life. Porter v. Nussle, 435 U.S. 516, 532 (2002). 23 24 25 26 27 28 Absent a showing of imminent danger of serious physical injury, plaintiff is ineligible to proceed in forma p a u p e r is in this action because he has had at least three previous actions dismissed for failure to state a claim, fr iv o lo u s n e s s , or maliciousness. 28 U.S.C. 1915(g). The Court takes judicial notice of case numbers 1:06-CV0 0 6 7 1 -O W W -S M S -P W e a v e r v. California Correctional Institution Confinement SHU (dismissed July 17, 2006, for fa ilu r e to state a claim and frivolousness); 1:06-CV-00775-OW W -L J O -P W e a v e r v. California Correctional I n s titu tio n - Third W a tc h Sergeant (dismissed July 17, 2006, for failure to state a claim and frivolousness); and 1:06C V -0 0 8 6 3 -O W W -S M S -P W e a v e r v. California Correctional Institution Law Library (dismissed August 1, 2006, for f a i l u r e to state a claim and frivolousness). 1 UNITED STATES DISTRICT COURT WILLIE WEAVER, Plaintiff, v. CALIFORNIA CORRECTIONAL INSTITUTION BUILDING A-4A-4, et al., / CASE NO. 1:06-CV-01308-AWI-LJO-P ORDER DISMISSING ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST PRIOR TO FILING SUIT (Doc. 1) paid the $350.00 filing fee.1 1 Dockets.Justia.com Case 1:06-cv-01308-AWI-LJO Document 3 Filed 10/04/2006 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion must occur prior to filing suit. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Plaintiff concedes in his complaint that exhaustion of his claim has not yet occurred. Because is it clear from the face of plaintiff's complaint that he did not exhaust the available administrative remedies prior to filing suit, this action must be dismissed. 42 U.S.C. 1997e(a); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) ("A prisoner's concession to nonexhaustion is a valid grounds for dismissal . . . ."). Accordingly, this action is HEREBY ORDERED DISMISSED, without prejudice, based on plaintiff's failure to comply with 42 U.S.C. 1997e(a) by exhausting the available administrative remedies prior to filing suit. IT IS SO ORDERED. Dated: 0m8i78 October 3, 2006 /s/ Anthony W. Ishii UNITED STATES DISTRICT JUDGE 2

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