O'Connell v. Kern Valley State Prison

Filing 23

ORDER Denying Motion to Stay 22 ; ORDER Dismissing Action Without Prejudice for Failure to Exhaust 1 ; ORDER Denying All Pending Motions as Moot 15 , 16 , 20 , 21 , signed by Magistrate Judge Gerald B. Cohn on 8/1/11. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KEVIN P. O’CONNELL,

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Plaintiff,
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Case: No. 1:11-cv-00512-GBC (PC)
ORDER DENYING MOTION TO STAY
ACTION
(Doc. 22)

v.
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KERN VALLEY STATE PRISON, et al.,
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ORDER DISMISSING ACTION WITHOUT
PREJUDICE FOR FAILURE TO EXHAUST
(Doc. 1)

Defendants.
ORDER DENYING ALL PENDING MOTIONS
AS MOOT
/ (Docs. 15, 16, 20, 21)

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I.

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Kevin P. O’Connell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action filed pursuant to 42 U.S.C. § 1983. On January 27, 2011, Plaintiff filed the

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original complaint. (Doc. 1). On February 25, 2011, Plaintiff filed his first amended complaint.

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(Doc. 6). On the form complaint, Plaintiff conceded that he had not exhausted administrative

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remedies claiming that his claims had been screened out and he should be exempted from the

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exhaustion requirement due to immediate health needs. (Doc. 6 at 2). On July 29, 2011, Plaintiff

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filed a motion to stay the action due to the fact that he recently realized that his administrative

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grievance was actually being heard at the final level. (Doc. 22).

Factual and Procedural Background

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II.

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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

Exhaustion Requirement

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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, 127 S.Ct. 910, 918-19 (2007); McKinney

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v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). The Court must dismiss a case without

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prejudice even when there is exhaustion while the suit is pending. Lira v. Herrera, 427 F.3d 1164,

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1170 (9th Cir. 2005).

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Exhaustion is required regardless of the relief sought by the prisoner. Booth v. Churner, 532

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U.S. 731, 741, 121 S.Ct. 1819 (2001). A prisoner “must use all steps the prison holds out, enabling

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the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009);

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see also Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). A prisoner’s concession to

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non-exhaustion is valid grounds for dismissal so long as no exception to exhaustion applies. 42

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

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

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Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit.

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15 § 3084.1 (2008). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a).

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Four levels of appeal are involved, including the informal level, first formal level, second formal

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

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be submitted within 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 level. Id.

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at §§ 3084.5, 3084.6(c).

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

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process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378,

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2383 (2006); McKinney, 311 F.3d at 1199-1201. “[E]xhaustion is mandatory under the PLRA and

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. . . unexhausted claims cannot be brought in court.” Jones, 127 S.Ct. at 918-19 (citing Porter, 435

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U.S. at 524). “All ‘available’ remedies must now be exhausted; those remedies need not meet

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federal standards, nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524 (quoting

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Booth, 532 U.S. at 739 n.5). In this instance, Plaintiff conceded that he has not exhausted

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administrative remedies and has motioned the court to stay the action until his administrative
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remedies are exhausted. Since the Court must dismiss a case without prejudice even when there is

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exhaustion while the suit is pending, Lira v. Herrera, 427 F.3d 1164, 1170, Plaintiff’s motion to stay

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is DENIED and Plaintiff’s action is DISMISSED without prejudice.

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III.

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Conclusion and Order
Because it is apparent that Plaintiff has not completed the grievance process, the Court

HEREBY ORDERS:

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1.

Plaintiff’s motion to stay action is DENIED (Doc. 22);

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2.

Plaintiff’s action is DISMISSED WITHOUT PREJUDICE for failure to exhaust;

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and

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3.

All pending motions in this action are DENIED AS MOOT (Docs. 15, 16, 20, 21).

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IT IS SO ORDERED.

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Dated:
0jh02o

August 1, 2011
UNITED STATES MAGISTRATE JUDGE

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