Colbert v. Roman-Marin et al

Filing 7

FINDINGS and RECOMMENDATIONS recommending Dismissal of Action, Without Prejudice, For Failure to Exhaust signed by Judge Dennis L. Beck on 09/10/2007. Motion referred to Judge Lawrence J. O'Neill, Objections to F&R due by 10/15/2007. (Esteves, C)

(DLB) (PC) Colbert v. Roman-Marin et al

Doc. 7

Case 1:07-cv-01280-LJO-NEW

Document 7

Filed 09/11/2007

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1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 Plaintiff Reginald Colbert ("plaintiff") is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on 17 September 4, 2007. 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). Prisoners must complete the prison's 22 administrative process, regardless of the relief sought by the prisoner and regardless of the relief 23 offered by the process, as long as the administrative process can provide some sort of relief on 24 the complaint stated. Booth v. Churner, 532 U.S. 731, 741 (2001). The section 1997e(a) 25 exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 26 U.S. 516, 532 (2002), and exhaustion must occur prior to filing suit, McKinney v. Carey, 311 27 F.3d 1198, 1199-1201 (9th Cir. 2002). 28 1
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UNITED STATES DISTRICT COURT

REGINALD COLBERT, Plaintiff, v. LT. ROMAN-MARIN, et al.,

CASE NO. 1:07-cv-01280-LJO-NEW (DLB) PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST (Doc. 1)

Defendants. OBJECTIONS DUE WITHIN THIRTY DAYS /

Case 1:07-cv-01280-LJO-NEW

Document 7

Filed 09/11/2007

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In his complaint, plaintiff alleges that the administrative remedy process is not yet complete because he is still waiting for the third level response. "[E]xhaustion is mandatory under the PLRA and . . . unexhausted claims cannot be brought in court." Jones v. Bock, 127 S.Ct. 910, 918-19 (2007) (citing Porter, 435 U.S. at 524). In this instance, plaintiff has not yet completed the administrative remedy process. Because is it clear from the face of plaintiff's complaint that he did not exhaust 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, it is HEREBY RECOMMENDED that this action be dismissed, without prejudice, based on plaintiff's failure to comply with 42 U.S.C. § 1997e(a) by exhausting his claims prior to filing suit. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED. Dated: 3b142a

September 10, 2007

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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