Garrett v. Myers et al

Filing 19

ORDER DISMISSING CASE, Without Prejudice, for Failure to Exhaust Administrative Remedies Prior to Filing this Action; Clerk to CLOSE CASE signed by Magistrate Judge Gerald B. Cohn on 6/14/2011. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JAMES “JAMIL” GARRETT,

1:10-cv-00779-GBC (PC)

Plaintiff,

ORDER DISMISSING CASE, WITHOUT
PREJUDICE, FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES PRIOR TO
FILING THIS ACTION

Defendants.

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(ECF No. 18)

v.
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T. BILLINGS, et al.,
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/ CLERK TO CLOSE CASE
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ORDER

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I.

Background

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James “Jamil” Garrett (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On May 3, 2010,

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Plaintiff filed his original complaint. (ECF No. 1.) Plaintiff consented to Magistrate Judge

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jurisdiction on May 12, 2010. (ECF No. 7.) Plaintiff then filed his First Amended Complaint

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on January 4, 2011, which was dismissed for failure to state a claim. (ECF Nos. 9 & 12.)

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Plaintiff filed his Second Amended Complaint on May 20, 2011, and it was also dismissed

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for failure to state a claim. (ECF Nos. 16 & 17.) Plaintiff has not yet filed a Third Amended

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Complaint. No other parties have appeared.

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On June 2, 2011, Plaintiff filed a pleading titled “Request for Information as to the

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Receipt of Filings and Notice of Exhaustion”. (ECF No. 18.) This pleading appears to ask

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the clerk whether his Second Amended Complaint was received. As noted above, it was

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filed on May 20, 2011, and screened and dismissed on May 26, 2011. (ECF Nos. 16 &
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17.)
Also included in Plaintiff’s pleading is a declaration to which he has attached the

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Director’s Level Appeal Decision which is addressed below.

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II.

Exhaustion Requirement

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Pursuant to the Prison Litigation Reform Act (“PLRA”) of 1995, “[n]o action shall be

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brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal

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law, by a prisoner confined in any jail, prison, or other correctional facility until such

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administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). A

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prisoner “may initiate litigation in federal court only after the administrative process ends

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and leaves his grievances unredressed.” Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th

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Cir. 2006). A prisoner is not allowed to file a complaint addressing non-exhausted claims,

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even if exhaustion of administrative remedies occurs while his case is pending. McKinney,

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311 R.3d 1198, 1199 (9th Cir. 2002); Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005).

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Exhaustion is required regardless of the relief sought by the prisoner. Booth v.

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Churner, 532 U.S. 731, 741 (2001). A prisoner must “must use all steps the prison holds

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out, enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117,

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1119 (9th Cir. 2009); see also Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). A

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prisoner’s concession to non-exhaustion is valid grounds for dismissal so long as no

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exception to exhaustion applies. 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d 1108,

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1120 (9th Cir. 2003).

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The Court takes judicial notice of the fact that the California Department of

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Corrections and Rehabilitation has an administrative grievance system for prisoner

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complaints. Cal. Code Regs., tit. 15 § 3084.1 (2008). The process is initiated by

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submitting a CDC Form 602. Id. at § 3084.2(a). Four levels of appeal are involved,

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including the informal level, first formal level, second formal level, and third formal level,

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also known as the “Director’s Level.” Id. at § 3084.5. Appeals must be submitted within

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fifteen working days of the event being appealed, and the process is initiated by

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submission of the appeal to the informal level, or in some circumstances, the first formal
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level. Id. at §§ 3084.5, 3084.6(c).

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In order to satisfy Section 1997e(a), California state prisoners are required to use

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the available process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S.

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81, 126 S.Ct. 2378, 2383 (2006). “[E]xhaustion is mandatory under the PLRA and . . .

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unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 127 S.Ct.

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910, 918-19 (2007) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)). “All ‘available’

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remedies must now be exhausted; those remedies need not meet federal standards, nor

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must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524 (quoting Booth, 532

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U.S. at 739 n.5).

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III.

Analysis
Included in Plaintiff’s pleading filed on June 2, 2011 is a document that appears

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to be the Director’s Level Appeal Decision related to the claims alleged by Plaintiff in

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this case. The Director’s Decision is dated May 17, 2011. Plaintiff states that he

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received it on May 23, 2011. The Director’s Level Appeal Decision appears to exhaust

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Plaintiff’s administrative remedies in this case.
Plaintiff filed this action on May 3, 2010 (ECF No. 1), well before he exhausted

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his administrative remedies. As noted above, a prisoner must exhaust all available

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administrative remedies before filing an action with this court. Plaintiff did not do this.

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And, the fact that exhaustion was completed during the action, does not satisfy the

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PLRA’s exhaustion requirement.
Therefore, Plaintiff’s action is dismissed without prejudice for failure to exhaust

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administrative remedies.

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///

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//

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/

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//

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///

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//
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IV.

Conclusion and Order

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For the foregoing reasons, the Court HEREBY ORDERS that:

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Plaintiff’s action be DISMISSED WITHOUT PREJUDICE for failure to
exhaust administrative remedies prior to filing his complaint; and

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2.

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Clerk shall CLOSE the case.

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IT IS SO ORDERED.

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Dated:
1j0bbc

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June 14, 2011
UNITED STATES MAGISTRATE JUDGE

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