Irby v. Lopez

Filing 9

ORDER DISMISSING Action without Prejudice for Failure to Exhaust Available Administrative Remedies signed by Magistrate Judge Gary S. Austin on 05/16/2015. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:14-cv-01845 GSA PC

JOHN IRBY,

ORDER DISMISSING ACTION WITHOUT
PREJUDICE FOR FAILURE TO EXHAUST
AVAILABLE ADMINISTRATIVE
REMEDIES

vs.
J. LOPEZ,

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Defendant.

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I.

Screening Requirement

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction

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pursuant to 28 U.S.C. § 636(c).1

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §

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1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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Plaintiff consented to proceed before a magistrate judge on December 17, 2014 (ECF No 7).
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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal . . . fails to state a claim upon which relief may be granted.”

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1915(e)(2)(B)(ii).

28 U.S.C. §

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkewicz v. Sorema N.A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a

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short and plain statement of the claim showing that the pleader is entitled to relief . . .” Fed.

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R.Civ. P. 8(a). “Such a statement must simply give the defendant fair notice of what the

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plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512.

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However, “the liberal pleading standard . . . . applies only to a plaintiff’s factual allegations.”

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Nietze v. Williams, 490 U.S. 319, 330 n. 9 (1989). “[A] liberal interpretation of a civil rights

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complaint may not supply essential elements of the claim that were not initially pled.” Bruns v.

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Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)(quoting Ivey v.Bd. of Regents,

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673 F.2d 266, 268 (9th Cir. 1982)).

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II.

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Plaintiff’s Claims
Plaintiff, an inmate in the custody of the California Department of Corrections and

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Rehabilitation (CDCR) at the Correctional Training Facility Soledad, brings this action against

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Defendant Correctional Officer (C/O) J. Lopez, an employee of the CDCR at Corcoran State

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Prison, where the event at issue occurred. Plaintiff claims that Defendant failed to protect him

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from assault by other inmates, in violation of the Eighth Amendment.

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

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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

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

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exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199,

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207-08 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is

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required regardless of the relief sought by the prisoner and regardless of the relief offered by
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the process. Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement

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applies to all prisoner suits relating to prison life. Porter v. Nussle, 435 U.S. 516, 532 (2002).

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The California Department of Corrections and Rehabilitation has an administrative

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grievance system for prisoner complaints. Cal. Code Regs., tit. 15 §3084.1. The process is

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initiated by submitting a CDC Form 602. Id. at § 3084.2(a). Four levels of appeal are

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involved, including the informal level, first formal level, second formal level, and third formal

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level, also known as the “Director’s Level.” Id. at § 3084.5. Appeals must be submitted within

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fifteen working days of the event being appealed, and the process is initiated by submission of

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the appeal to the informal level, or in some circumstances, the first formal level. Id. at §§

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3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are required

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to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81,

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88 (2006); McKinney, 311 F.3d at 1199-1201.

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Here, Plaintiff concedes that he has not exhausted his available administrative remedies.

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Plaintiff indicates that “this is the first papers I’ve received concerning our lawsuit and don’t

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really have any knowledge of how to proceed.” Plaintiff is advised that he must file an inmate

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grievance in accordance with the above procedure and complete the grievance process prior to

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filing suit. Plaintiff must exhaust his administrative remedies prior to filing suit, not during the

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pendency of the suit. See McKinney, 311 F.3d at 1199 (requiring dismissal without prejudice

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where a prisoner “does not exhaust his administrative remedies prior to filing suit but is in the

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process of doing so when a motion to dismiss is filed.”)

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III.

Conclusion

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The Court has screened Plaintiff’s complaint and finds that Plaintiff has conceded that

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he has not exhausted his available administrative remedies prior to filing suit. This action

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should therefore be dismissed without prejudice to re-filing once Plaintiff has exhausted his

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administrative remedies.

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Plaintiff is cautioned that he may not change the nature of this suit by adding new,

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unrelated claims in his amended complaint.

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complaint supersedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th

Plaintiff is also advised that an amended

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Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be “complete and in

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and of itself without reference to the prior or superseded pleading.” Local Rule 15-220.

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Plaintiff is warned that “[a]ll causes of action alleged in an original complaint which are not

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alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing to London v.

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Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)).

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Accordingly, IT IS HEREBY ORDERED that this action is dismissed, without

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prejudice, for Plaintiff’s failure to exhaust his administrative remedies prior to filing suit. The

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Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:

May 16, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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