Harris v. Smith et al

Filing 10

SCREENING ORDER DISMISSING CASE without prejudice signed by Magistrate Judge Sheila K. Oberto on 2/9/2012. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LONZO HARRIS,

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Plaintiff,

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CASE NO. 1:11-cv-00111-SKO PC
SCREENING ORDER DISMISSING
ACTION, WITHOUT PREJUDICE,
FOR FAILURE TO EXHAUST

v.
STEVEN SMITH, et al.,

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(Doc. 1)

Defendants.
/

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Plaintiff Lonzo Harris, state prisoner proceeding pro se and in forma pauperis, filed this civil

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rights action pursuant to 42 U.S.C. § 1983 on January 21, 2011. For the reasons set forth below, this

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action is dismissed, without prejudice, based on Plaintiff’s failure to exhaust prior to filing suit.

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Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with

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respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner

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confined in any jail, prison, or other correctional facility until such administrative remedies as are

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available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available

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administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910 (2007);

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McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless

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of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v.

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Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all

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suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).

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Plaintiff alleges that on December 29, 2010, Defendant Smith rescinded all of his disability

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chronos and that act is the basis for Plaintiff’s claim in this action. (Comp., §IV.) Plaintiff alleges

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that he filed an inmate appeal but he did not receive any response to the appeal. (Id., § III.)

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Assuming Plaintiff filed an inmate appeal on December 29, 2010, the earliest date possible,

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he still filed suit prematurely.1 Prison officials have fifteen working to respond to an appeal and the

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fifteenth day fell on January 21, 2011. Cal. Code Regs., tit. 15 § 4003(j). Whether prison officials

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ultimately failed to timely respond to Plaintiff’s appeal and if so, whether their lack of a timely

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response provides a ground for arguing that the appeals process was rendered unavailable, Plaintiff

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may not avail himself of that argument in this action because he filed suit before waiting for the

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fifteen-day time period to expire. Sapp v. Kimbrell, 623 F.3d 813, 822-23 (9th Cir. 2010); Nunez

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v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010).

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Because it is clear from the face of Plaintiff’s complaint that he filed suit prior to exhausting

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his administrative remedies, this action is HEREBY DISMISSED, without prejudice, for failure to

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comply with 42 U.S.C. § 1997e(a). Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A

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prisoner’s concession to nonexhaustion is a valid grounds for dismissal. . . .”).

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IT IS SO ORDERED.

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Dated:
ie14hj

February 9, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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Plaintiff’s complaint was dated January 17, 2011, and it was received the morning of January 21, 2011, at
the court. Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009).

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