Berrios v. Dileo et al

Filing 9

ORDER Denying Plaintiff's Motion to Stay Until Completion of Interdepartmental Appeal Process 3 , signed by Magistrate Judge Barbara A. McAuliffe on 10/18/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MARVIN BERRIOS,

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CASE NO. 1:11-cv–01434-AWI-BAM
Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
TO STAY UNTIL COMPLETION OF
INTERDEPARTMENTAL APPEAL PROCESS

v.
DR. DILEO, et al.,

(ECF No. 3)
Defendants.
/

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Plaintiff Marvin Berrios is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff filed a complaint in this action and motion to stay on August

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26, 2011. (ECF Nos. 1,3.) Plaintiff states that he has failed to exhaust administrative remedies and

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moves for the Court to accept his complaint and stay this action until the appeal process is complete.

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Plaintiff claims that he has submitted appeals which should be considered emergency appeals and

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prison officials are taking too long to process them.

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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). Exhaustion of administrative remedies is required

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regardless of the relief sought by the prisoner. Booth v. Churner, 532 U.S. 731, 741 (2001). Proper

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exhaustion is required so “a prisoner must complete the administrative review process in accordance

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with the applicable rules, including deadlines, as a precondition to bringing suit in federal court.”

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Ngo v. Woodford, 539 F.3d 1108, 1109 (9th Cir. 2008) (quoting Woodford v. Ngo, 126 S. Ct. 2378,
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2384 (2006))

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Plaintiff’s complaint will be screened in the order in which it was received. To the extent

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that Plaintiff is attempting to have the Court find that he does not have to exhaust his administrative

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remedies prior to filing this action his request shall be denied. If the complaint is screened and

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cognizable claims are found, Defendants may bring a motion to dismiss for failure to exhaust. Once

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all parties have an opportunity to weigh in on the issue of exhaustion the Court will determine if

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Plaintiff has exhausted his administrative remedies prior to filing this action.

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Accordingly, Plaintiff’s motion to stay this action until completion of the interdepartmental
appeal process, filed August 26, 2011, is HEREBY DENIED.
IT IS SO ORDERED.
Dated:
1c20kb

October 18, 2011

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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