Batten v. Vasquez et al

Filing 6

ORDER DISMISSING Action, Without Prejudice, For Failure To Exhaust Prior To Filing Suit (Doc. 1 ), signed by Magistrate Judge Gary S. Austin on 2/12/2009. CASE CLOSED. (Scrivner, E)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Sly Batten ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on November 17, 2008. Pursuant to Plaintiff's written consent, filed November 26, 2008, and Appendix A(k)(4) of the Local Rules of the Eastern District of California, this case is assigned to the undersigned to conduct any and all proceedings. In his complaint, Plaintiff alleges that on October 26, 2008, correctional officers used excessive physical force against him, issued a false rules violation report against him, and placed him in administrative segregation. (Doc. 1, Comp., § IV.) Plaintiff submitted an inmate appeal grieving the incident on November 13, 2008, the same day he drafted his complaint. (Id., Ex. 1.) Plaintiff concedes the process is not exhausted, alleging that he has not received a response. (Id., § II.) Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are 1 v. P. L. VASQUEZ, et al., Defendants. / SLY BATTEN, Plaintiff, CASE NO. 1:08-cv-01750-GSA PC ORDER DISMISSING ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST PRIOR TO FILING SUIT (Doc. 1)

UNITED STATES DISTRICT COURT

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available are exhausted." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002). The Court takes judicial notice of the fact that the California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2009). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Id. at § 3084.5. Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are required to use the available process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2383 (2006); McKinney, 311 F.3d at 1199-1201. "[E]xhaustion is mandatory under the PLRA and . . . unexhausted claims cannot be brought in court." Jones, 127 S.Ct. at 918-19 (citing Porter, 435 U.S. at 524). "All `available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be `plain, speedy, and effective.'" Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739 n.5). Although Plaintiff stated in 602 form that the appeal was an emergency appeal, there is no exception to the PLRA's exhaustion requirement. Responses to informal level appeals are due within ten working days and responses to appeals at the first formal level of review are due within thirty working days. Tit. 15, § 3084.6(b). If the appeals coordinator determines that processing as an emergency appeal is warranted, the first level is waived and the second level response is due within five working days. Tit. 15, § 3084.7(a)(2). Whether or not Plaintiff's appeal was subsequently accepted as an emergency appeal, Plaintiff filed suit without waiting for the expiration 2

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of the time period prison officials have to respond to his appeal. Because it is clear from the face of Plaintiff's complaint that he has not yet exhausted, 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 HEREBY ORDERED 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.

IT IS SO ORDERED. Dated: 6i0kij

February 12, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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