Britton v. Ho

Filing 25

FINDINGS And RECOMMENDATIONS To Dismiss Without Prejudice For Plaintiff's Failure To Exhaust Administrative Remedies Prior To Filing Suit (Docs. 22 , 24 ), Objection Deadline 30 Days, signed by Magistrate Judge Jennifer L. Thurston on 4/24/2014. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 5/30/2014. (Fahrney, E)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE BRITTON, Plaintiff, 14 15 16 17 FINDINGS AND RECOMMENDATIONS TO DISMISS WITHOUT PREJUDICE FOR PLAINTIFF'S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES PRIOR TO FILING SUIT Defendant. 12 13 Case No. 1:13-cv-01854-LJO-JLT (PC) (Docs. 22, 24) v. CHEN HO, OBJECTION DEADLINE 30 DAYS Plaintiff, George Britton, is a state prisoner proceeding pro se and in forma pauperis with 18 a civil rights action pursuant to 42 U.S.C. § 1983. On November 13, 2013, this action was 19 transferred to this Court from the Northern District of California. 20 Though Plaintiff checked the boxes on his complaint indicating that there is a grievance 21 procedure at the institution of his confinement and that he presented the facts in his complaint for 22 review through a grievance, he goes on to state that the CDCR has no remedy to provide for his 23 suit. (Doc. 1, Comp., p. 1.) Further, Plaintiff indicates that the result at the first formal level is 24 "[t]here is no remedy available." (Id., at p. 2.) Plaintiff then marked a large "X" through the lines 25 in which he was to provide the results of his grievance at the second and third level, did not mark 26 whether the last level to which he appealed was the highest level of appeal available to him, and 27 marked another large "X" through the lines to explain if he did not present his claim for review 28 through the grievance procedure. (Id.) Subsequently, Plaintiff filed two motions seeking to stay 1 1 the action so as to allow him to exhaust available administrative remedies before pursuing this 2 action further—effectively conceding that he did not complete the process. (Docs. 15, 16.) 3 Thus, it appears Plaintiff filed suit prematurely without first exhausting his available 4 administrative remedies in compliance with section 1997e(a). Wyatt v. Terhune, 315 F.3d 1108, 5 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal. . 6 . .”) overruled on other grounds in Albino v. Baca, No. 10-55702, 2014 WL 1317141 (9th Cir. 7 Apr. 3, 2014) (en banc). Based on this, on March 19, 2014, an order issued for Plaintiff to show 8 cause why this action should not be dismissed based on his failure to exhaust administrative 9 remedies prior to commencing this action. (Doc. 22.) Plaintiff filed a response on April 9, 2014 10 11 which is insufficient to allow this action to proceed. (Doc. 24.) In his response, Plaintiff argues that he repeatedly complained to the prison medical 12 doctor regarding his Valley Fever; that the doctor told Plaintiff there was no cure and no relief 13 that he could offer; Plaintiff requested a transfer which was refused; Plaintiff then filed a first 14 level inmate appeal which was denied; Plaintiff filed a second level inmate appeal to which he 15 never received a response; Plaintiff then "filed the instant action because state prison told him it 16 could do nothing for him (prison M.D.);" after filing this action, Plaintiff filed a third level inmate 17 appeal to which he never received a response. (Doc. 24, ¶¶ 4-5.) Plaintiff argues that the lack of 18 response to his inmate appeal at the second and third levels caused him to have no remedies 19 available to exhaust. (Id., at ¶¶ 6-7.) However, as noted in the order to show cause, the exhibits 20 that Plaintiff attached to the Complaint show that he filed the grievance regarding the facts in this 21 action almost a year after the events in question occurred such that it was cancelled as untimely. 22 (See Doc. 1, Comp., pp. 4-5.) 23 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 24 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 25 confined in any jail, prison, or other correctional facility until such administrative remedies as are 26 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 27 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910 28 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required 2 1 regardless of the relief sought by the prisoner and regardless of the relief offered by the process. 2 Booth v. Churner, 532 U.S. 731, 741 (2001). The exhaustion requirement applies to all suits 3 relating to prison life. Porter v. Nussle, 435 U.S. 516 (2002). 4 Further, “proper exhaustion of administrative remedies is necessary” and the exhaustion 5 requirement may not be satisfied “by filing an untimely or otherwise procedurally defective . . . 6 appeal.” Woodford v. Ngo, 548 U.S. 81, 83-84, 126 S.Ct. 2378 (2006). “Proper exhaustion 7 demands compliance with an agency’s deadlines and other critical procedural rules. . . .” Id. at 8 90. As stated in the order to show cause, the exhibits that Plaintiff attached to the Complaint 9 show that he filed the grievance regarding the facts in this action almost a year after the events in 10 question occurred such that it was cancelled as untimely. (See Doc. 1, Comp., pp. 4-6.) The 11 untimeliness of Plaintiff's initial filing his inmate appeal at the first level is fatal to this action. 12 13 14 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed without prejudice based on Plaintiff's failure to exhaust his administrative remedies prior to filing suit. These Findings and Recommendations will be submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 30 16 days after being served with these Findings and Recommendations, Plaintiff may file written 17 objections with the Court. The document should be captioned AObjections to Magistrate Judge=s 18 Findings and Recommendations.@ Plaintiff is advised that failure to file objections within the 19 specified time may waive the right to appeal the District Court=s order. Martinez v. Ylst, 951 F.2d 20 1153 (9th Cir. 1991). 21 22 23 24 IT IS SO ORDERED. Dated: April 24, 2014 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?