Irving v. Calif. Dept. of Corrections et al

Filing 14

ORDER to SHOW CAUSE Regarding Administrative Exhaustion of Claim 2; THIRTY DAY DEADLINE, signed by Magistrate Judge Gerald B. Cohn on 5/20/11. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ARVELL JAMES IRVING,

1:10-cv-00905-GBC (PC)

Plaintiff,

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ORDER TO SHOW CAUSE REGARDING
ADMINISTRATIVE EXHAUSTION OF
CLAIM 2

v.
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California Department of Corrections, et
al.,

(ECF No. 12)

Defendants.

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THIRTY DAY DEADLINE
/

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Plaintiff Arvell James Irving (“Plaintiff”) is a state prisoner proceeding pro se and

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in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed

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this action on May 20, 2010 and consented to Magistrate Judge jurisdiction on May 28,

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2010. (ECF Nos. 1 & 4.) Plaintiff then filed a First Amended Complaint on August 24,

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2010. (ECF No. 12.)

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On page two of the form complaint, Plaintiff states that there is an inmate grievance

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procedure available at his institution. (ECF No. 12, Pl.’s 1st Am. Compl., p. 2). Plaintiff

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goes on to state that he completed the grievance procedure for Claim 1, but did not file a

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grievance at all for Claim 2. (Id.) Plaintiff states that Claim 2 deals with an accident that

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caused injury to his back on March 30, 2010. (Id.) In explanation for him not complying

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with the grievance procedure, Plaintiff states that he has not received an MRI or X-ray, so

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he is filing Claim 2 in this action under Wright v. California, 122 Cal.App.4th 659 (2004).

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(Id.)

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Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought
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with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a

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prisoner confined in any jail, prison, or other correctional facility until such administrative

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

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to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 127

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S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).

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The Court must dismiss a case without prejudice even when there is exhaustion while the

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suit is pending. 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 California Department of Corrections and Rehabilitation has an administrative

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grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2008). The

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process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). Four levels of

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appeal are involved, including the informal level, first formal level, second formal level, and

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third formal level, also known as the “Director’s Level.” Id. at § 3084.5. Appeals must be

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submitted within fifteen working days of the event being appealed, and the process is

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initiated by submission of the appeal to the informal level, or in some circumstances, the

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first formal 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, 85 (2006); McKinney, 311 F.3d at 1199-1201. “[E]xhaustion is mandatory under the

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PLRA and . . . unexhausted claims cannot be brought in court.” Jones, 127 S.Ct. at 918-19

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(citing Porter, 435 U.S. at 524). “All ‘available’ remedies must now be exhausted; those

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remedies need not meet federal standards, nor must they be ‘plain, speedy, and effective.’”
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Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739 fn. 5).

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Plaintiff states that he did not follow the grievance procedure for Claim 2 and relies

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on Wright v. California, 122 Cal.App.4th 659 (2004). In Wright, the prisoner alleged

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medical malpractice and violations of his Eighth Amendment rights. The prisoner argued

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that he had substantially complied with the grievance procedure (completing up to level

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two) and used the Defendant’s extreme delay as an excuse for not completing level three.

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The Court disagreed, finding that “the [Defendant’s] delay does not excuse [the prisoner’s]

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failure to exhaust his available administrative remedies” and noting that the correct remedy

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for an unreasonable delay is not a suit for damages, but a writ of mandate. Id. at 667.

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Plaintiff refers to the footnote included by the Wright Court which states that a defendant

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must complete the third level review within a reasonable period. Id. at 668, fn. 2.
Plaintiff makes no statements as to the relevance of this case to his situation.

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Unlike the prisoner in Wright, Plaintiff states that he did not even attempt to comply with

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the grievance procedure for Claim 2. Plaintiff appears to be blaming his failure to comply

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on the fact that he had not received an MRI or an x-ray, which he refers to as an

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“EXTREME DELAY”. This alleged delay has no correlation with the delay referred to in

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Wright. In Wright, the prisoner had completed the second level of review and submitted

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his appeal to the third level, but had not received a response before he filed his complaint.

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This is not the case here. Plaintiff states that he did not file any grievance having to do

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with his injury. Thus, he has not complied with the grievance procedure as required.
Because Plaintiff has not completed the grievance process, the Court HEREBY

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ORDERS that:

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Plaintiff SHALL SHOW CAUSE why Claim 2 should not be dismissed

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without prejudice for failure to exhaust administrative remedies within

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thirty (30) days of the date of service of this order.

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IT IS SO ORDERED.

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Dated:
1j0bbc

May 20, 2011
UNITED STATES MAGISTRATE JUDGE
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