Hernandez v. Olmos et al
Filing
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ORDER To SHOW CAUSE As To Why This Action Should Not Be Dismissed, Without Prejudice, For Plaintiff's Concession Of Failure To Exhaust Administrative Remedies (Doc. 1 ), Twenty-One Day Deadline, signed by Magistrate Judge Gerald B. Cohn on 9/18/2012. Show Cause Response due by 10/11/2012.(Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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NESTOR DANIEL HERNANDEZ,
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Plaintiff,
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v.
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OLMOS, et al.,
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Defendants.
CASE NO. 1:11-cv-01495-LJO-GBC (PC)
ORDER TO SHOW CAUSE AS TO WHY
THIS ACTION SHOULD NOT BE
DISMISSED, WITHOUT PREJUDICE, FOR
PLAINTIFF’S CONCESSION OF FAILURE TO
EXHAUST ADMINISTRATIVE REMEDIES
Doc. 1
/ TWENTY-ONE DAY DEADLINE
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I. Introduction
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On September 7, 2011, Plaintiff Nestor Daniel Hernandez (“Plaintiff”), a state prisoner
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proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983,
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alleging failure to provide showers and only providing a portion of meal servings. Doc. 1. In
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Plaintiff’s complaint, he concedes non-exhaustion, stating his inmate appeal was still at the first level
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of review; that he wishes to file his complaint concurrently while exhausting; and that he cannot
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exhaust because the institution will not agree to a money settlement. See Compl. at 6, Doc. 1.
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II. Failure to Exhaust Administrative Remedies
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A. Legal Standard
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Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be
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brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a
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prisoner confined in any jail, prison, or other correctional facility until such administrative remedies
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as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is
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therefore mandatory, and no longer left to the discretion of the district court. Woodford v. Ngo, 548
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U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). The PLRA’s exhaustion
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requirement requires “proper exhaustion” of administrative remedies. Ngo, 548 U.S. at 93. This
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means “[p]risoners must now exhaust all ‘available’ remedies,” id. at 85, in “compliance with an
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agency’s deadlines and other critical procedural rules.” Id. at 90–91. The requirement cannot be
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satisfied “by filing an untimely or otherwise procedurally defective administrative grievance or
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appeal.” Id. Further, the remedies “available” need not meet federal standards, nor need they be
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“plain, speedy and effective.” Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth, 532 U.S. at 739-40
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& n.5.
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It is the prison’s requirements, and not the PLRA, that define the boundaries of proper
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exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007). The California Department of Corrections and
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Rehabilitation (“CDCR”) provides inmates the right to file administrative appeals alleging
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misconduct by correctional officers or “any departmental decision, action, condition, or policy which
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they can demonstrate as having an adverse effect upon their welfare.” See Cal. Code Regs. tit. 15,
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§§ 3084.1(a) & (e). In order to exhaust all available administrative remedies within this system, a
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prisoner must submit his complaint as an inmate appeal on a 602 form, within fifteen1 working days
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from the date the administrative decision or action being complained of, and proceed through several
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levels of appeal: (1) informal level grievance filed directly with any correctional staff member; (2)
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first formal level appeal filed with one of the institution’s appeal coordinators; (3) second formal
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level appeal filed with the institution head or designee; and (4) third formal level appeal filed with
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the CDCR director or designee. Id. at §§ 3084.5 & 3084.6(c); Brodheim v. Cry, 584 F.3d 1262,
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1264–65 (9th Cir. 2009); Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). See Ngo v.
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Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008) (Ngo II) (finding claims unexhausted where filed
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more than fifteen working days after deadline).
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A prisoner’s concession to non-exhaustion is valid grounds for dismissal so long as no
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exception to exhaustion applies. 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th
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As of July 2011, inmates have thirty calendar days to file appeals. § 3084.8(b).
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Cir. 2003). The Court may review exhibits attached to the complaint that may contradict Plaintiff’s
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assertions in the complaint. Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir. 2000); Durning v. First
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Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). In deciding . . . failure to exhaust administrative
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remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315
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F.3d at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative
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remedies, the proper remedy is dismissal without prejudice. Id.
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B. Analysis
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A prisoner’s concession to non-exhaustion is valid grounds for dismissal so long as no
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exception to exhaustion applies. 42 U.S.C. § 1997e(a); Wyatt, 315 F.3d at 1120. As stated above,
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In Plaintiff’s complaint, he concedes non-exhaustion, stating his inmate appeal was still at the first
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level of review; that he wishes to file his complaint concurrently while exhausting; and that he
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cannot exhaust because the institution will not agree to a money settlement. See Compl. at 6, Doc.
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1. “[A] district court must dismiss a case without prejudice ‘when there is no pre-suit exhaustion,’
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even if there is exhaustion while suit is pending.” Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir.
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2005), cert. denied, 549 U.S. 1204 (2007) (quoting McKinney v. Carey, 311 F.3d 1198, 1200 (9th
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Cir. 2002) (per curiam)).
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Plaintiff alleges that he is exempt from the requirements of exhaustion because he would be
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unable to obtain money damages through the prison grievance system. See Compl. at 6, Doc. 1.
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However, exhaustion is a prerequisite to suit even if the relief sought by an inmate, notably money
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damages, is not available in the administrative process. Porter, 534 U.S. at 524; Griffin v. Arpaio,
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557 F.3d 1117, 1119 (9th Cir. 2009).
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In Ngo, the Supreme Court held that “full and proper exhaustion of administrative remedies
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is necessary, which means using all steps that the agency holds out, and doing so properly (so that
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the agency addresses the issues on the merits).” See Ngo, 548 U.S. 81, 84, 90, 94. “Proper exhaustion
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demands compliance with an agency’s deadlines and other critical procedural rules because no
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adjudicative system can function effectively without imposing some orderly structure on the course
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of its proceedings.” Id. at 91, 103. While the Supreme Court recognized that this may be harsh and
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will prevent certain prisoner cases from proceeding, the “centerpiece of the PLRA’s effort to reduce
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the quantity . . . of prisoner suits is an ‘invigorated’ exhaustion provision, § 1997e(a).” Id. at 84 &
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103. “Exhaustion is no longer left to the discretion of the district court, but is mandatory.” Id. at 85.
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Plaintiff concedes that he failed to exhaust all his mandatory administrative remedies against
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defendants prior to initiating this action, which requires mandatory dismissal, in accordance with §
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1997e(a) and Ngo.
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III. Conclusion
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Based on the foregoing, it is HEREBY ORDERED that within twenty-one (21) days of the
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service of this order, Plaintiff SHALL SHOW CAUSE as to why this action should not be dismissed,
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without prejudice, for Plaintiff’s concession of failure to exhaust administrative remedies, pursuant
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to 42 U.S.C. § 1997e(a).
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IT IS SO ORDERED.
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Dated:
7j8cce
September 18, 2012
UNITED STATES MAGISTRATE JUDGE
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