Quezada v. Lindsey et al

Filing 12

ORDER to SHOW CAUSE Regarding Exhaustion, signed by Magistrate Judge Gerald B. Cohn on 5/2/11. Thirty Day Deadline. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ALVARO QUEZADA, 1:10-cv-01402-AWI-GBC (PC) 10 ORDER TO SHOW CAUSE REGARDING EXHAUSTION Plaintiff, 11 v. (Doc. 1) 12 R. LINDSEY, et al., 13 14 Defendants. / 15 16 I. Factual and Procedural Background 17 Alvaro Quezada (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action filed pursuant to 42 U.S.C. § 1983. On August 5, 2010, Plaintiff filed his 19 original complaint. On page three of the form complaint, Plaintiff asserts that the Appeal’s 20 Coordinator has purposefully obstructed Plaintiff’s ability to exhaust administrative remedies and 21 placed Plaintiff’s appeal “in limbo.” (Doc. 1 at 3). Plaintiff directs the Court to attachments of the 22 complaint to explain why his administrative remedies have not been exhausted. (Doc. 1 at 3). 23 Attached to Plaintiff’s complaint, on page 29, there is a letter dated February 6, 2009, from the 24 Appeals Coordinator stating that Plaintiff failed to timely submit the appeal as per Rule CCR 25 3084.6(c). (Doc. 1 at 29). 26 II. Exhaustion Requirement 27 Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with 28 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 1 1 confined in any jail, prison, or other correctional facility until such administrative remedies as are 2 available are exhausted." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 3 administrative remedies prior to filing suit. Jones v. Bock, 127 S.Ct. 910, 918-19 (2007); McKinney 4 v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). The Court must dismiss a case without 5 prejudice even when there is exhaustion while the suit is pending. Lira v. Herrera, 427 F.3d 1164, 6 1170 (9th Cir. 2005). 7 Exhaustion is required regardless of the relief sought by the prisoner. Booth v. Churner, 532 8 U.S. 731, 741, 121 S.Ct. 1819 (2001). A prisoner must “must use all steps the prison holds out, 9 enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 10 2009); see also Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). A prisoner's concession to 11 non-exhaustion is valid grounds for dismissal so long as no exception to exhaustion applies. 42 12 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). 13 The Court takes judicial notice of the fact that the California Department of Corrections and 14 Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 15 § 3084.1 (2008). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). 16 Four levels of appeal are involved, including the informal level, first formal level, second formal 17 level, and third formal level, also known as the "Director's Level." Id. at § 3084.5. Appeals must 18 be submitted within fifteen working days of the event being appealed, and the process is initiated by 19 submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. 20 at §§ 3084.5, 3084.6(c). Where a prisoner asks for accommodation for an ADA disability, the filing 21 of the “request for accommodation form” along with completion of the appeal process thereafter 22 satisfies PLRA exhaustion. Butler v. Adams, 397 F.3d 1181 (9th Cir.2005). 23 In order to satisfy section 1997e(a), California state prisoners are required to use the available 24 process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 25 2383 (2006); McKinney, 311 F.3d at 1199-1201. “[E]xhaustion is mandatory under the PLRA and 26 . . . unexhausted claims cannot be brought in court.” Jones, 127 S.Ct. at 918-19 (citing Porter, 435 27 U.S. at 524). “All ‘available’ remedies must now be exhausted; those remedies need not meet 28 federal standards, nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524 (quoting 2 1 Booth, 532 U.S. at 739 n.5). 2 The Court may review exhibits attached to the complaint that may contradict Plaintiff’s 3 assertions in the complaint. Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir. 2000); Durning v. First 4 Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). Attached to Plaintiff’s complaint, is a letter 5 dated February 6, 2009, from the Appeals Coordinator at Kern Valley State Prison which states that: 6 There has been too great a TIME LAPSE between when the action or decision occurred and when you filed your appeal with no explanation of why you did not or could not file in a timely fashion. Time limits expired per CCR 3084.6(c). Therefore, if you would like to pursue this matter further, you must submit an explanation and supporting documentation explaining why you did not or cuold not file your appeal timely. 7 8 9 (Doc. 1 at 29). The Supreme Court has held that the exhaustion requirement demands “proper” 10 exhaustion. Woodford v. Ngo, 548 U.S. 81, 84, 90-91 (2006). “To ‘proper[ly]’ exhaust, a prisoner 11 must comply ‘with an agency's deadlines and other critical procedural rules because no adjudicative 12 system can function effectively without imposing some orderly structure on the course of its 13 proceedings.’” Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010) (quoting Woodford v. Ngo, 548 14 U.S. 81, 90-91 ).1 15 In this instance, Plaintiff was given the opportunity to correct the error or seek reversal of the 16 screening result after receiving the screening notice. Plaintiff does not attach any documentation that 17 would demonstrate that he attempted to address the shortcomings highlighted in the administrative 18 screening notice. Since Plaintiff has failed to comply with the agency’s procedural requirements, 19 Plaintiff has not properly exhausted his administrative remedies. See Woodford v. Ngo, 548 U.S. 81, 20 84, 90-91. 21 22 III. Conclusion and Order 23 Because it appears that Plaintiff has not completed the grievance process, the Court 24 HEREBY ORDERS: 25 1. Plaintiff SHALL SHOW CAUSE why the action should not be dismissed for 26 27 28 1 The Court also takes judicial notice of another case by the same Plaintiff (Quezada v. Gricewich, 1:06-cv-01088-OW W -GBC (PC)) wherein the Court recommended dismissal due to Plaintiff’s failure to follow directions in order to properly exhaust administrative remedies. Quezada v. Gricewich, 1:06-cv-01088 at Doc. 68. 3 1 failure to exhaust administrative remedies withing thirty (30) days of the date of 2 service of this order. 3 4 IT IS SO ORDERED. 5 Dated: 0jh02o 6 May 2, 2011 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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