Ransome v. Longero et al

Filing 17

ORDER DISMISSING ACTION for Plaintiff's Failure to Exhaust Administrative Remedies Prior to Filing Suit signed by Magistrate Judge Gary S. Austin on 02/09/2012. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KIMIKO RANSOME,

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CASE NO. 1:10-cv-02317 GSA PC

Plaintiff,

ORDER DISMISSING ACTION FOR
PLAINTIFF’S FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES PRIOR TO
FILING SUIT

v.
C/O LONGERO, et al.,

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Defendants.
/

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to

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28 U.S.C. § 636(c)(1).

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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Plaintiff is an inmate in the custody of the California Department of Corrections and

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Rehabilitation (CDCR) at the Central California Women’s Facility in Chowchilla (CCWF). Plaintiff
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alleges that she is a wheelchair bound inmate. Plaintiff alleges that C/O Longero ordered her to get

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out of her wheelchair and walk through a metal detector. Plaintiff stood up, shifted her weight, and

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fell, injuring her left knee and elbow. Plaintiff further alleges that she was improperly classified as

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a Disability Placement Other (DPO), as opposed to a Disability Placement Wheelchair (DPW),

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which indicates the full time use of a wheelchair.

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Plaintiff initiated this action by the filing of a civil complaint on November 22, 2010. On

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November 8, 2011, Plaintiff filed a document styled as a notice of exhaustion of administrative

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remedies. In her submission, Plaintiff indicated that she had exhausted her remedies. Attached as

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an exhibit to her submission are copies of inmate grievance number CCWF-10-00533. In this

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grievance, Plaintiff indicated that, during a work change on August 26, 2010, C/O Longero ordered

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Plaintiff to stand up and walk through a metal detector. Plaintiff attempted to stand up and fell,

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injuring her knee and elbow. Plaintiff also attached a copy of a Director’s Level Appeal Decision

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for inmate grievance number CCWF-10-00533. The Director’s Level Appeal decision was issued

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on September 15, 2011, fully exhausting Plaintiff’s administrative remedies. Cal. Code Regs. Tit.

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15, § 3084.5(e)(2).

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“The Prison Litigation Reform Act requires that a prisoner exhaust available administrative

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remedies before bringing a federal action concerning prison conditions.” Griffin v. Arpaio, 557 F.3d

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1117, 1119 (9th Cir. 2009)(citing 42 U.S.C.§ 1997e(a)). “[T]he PLRA exhaustion requirement

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requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). This means that a prisoner

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must “complete the administrative review process in accordance with the applicable procedural rules,

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including deadlines, as a precondition to bringing suit in federal court.” Marella v. Terhune, 568

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F.3d 1024, 1027 (9th Cir. 2009)(quoting Ngo, 548 U.S. at 88).

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In an order to show cause entered on November 15, 2011, the Court noted that it appeared

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that Plaintiff conceded that she did not exhaust her available administrative remedies prior to filing

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suit. Although Plaintiff provided documentation that she fully exhausted her administrative

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remedies, the Court is required under Prison Litigation Reform Act (PLRA) to dismiss actions

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without prejudice where prisoner failed to exhaust administrative remedies prior to filing suit but

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was in process of doing so when the case was filed. McKinney v. Carey, 311 F.3d 1198 (9th Cir.
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2002). Accordingly, Plaintiff was ordered to show cause why this action should not be dismissed

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without prejudice for failure to exhaust available administrative remedies prior to filing suit.

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On January 31, 2012, Plaintiff filed a response to the order to show cause. In her response,

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Plaintiff recounts the facts alleged in the complaint regarding the incident that occurred on August

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26, 2010. Plaintiff makes no reference to exhaustion of administrative remedies, and makes no

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showing that she exhausted her administrative remedies prior to filing suit. This action was filed on

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November 22, 2010. The record clearly establishes that Plaintiff exhausted her administrative

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remedies on September 15, 2011.

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Accordingly, IT IS HEREBY ORDERED that this action is dismissed for Plaintiff’s failure

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to exhaust her available administrative remedies prior to filing suit. The Clerk is directed to close

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this action.

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IT IS SO ORDERED.
Dated:
6i0kij

February 9, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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