Williams v. Htay et al

Filing 18

ORDER Dismissing Case without Prejudice for Failure to Timely Exhaust; ORDER Directing Clerk of Court to Close Case, signed by Magistrate Judge Erica P. Grosjean on 12/29/16. CASE CLOSED. (Verduzco, M)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 7 8 9 10 Case No. 1:15-cv-01026-EPG (PC) JOHN ERIC WILLIAMS, Plaintiff, ORDER DISMISSING CASE WITHOUT PREJUDICE FOR FAILURE TO TIMELY EXHAUST (ECF NO. 1) v. HTAY and E. CLARK, ORDER DIRECTING CLERK OF COURT TO CLOSE CASE Defendants. 11 12 13 14 Plaintiff John Eric Williams, also known as Michael John Coleman (“Plaintiff”), is 15 proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 16 1983. Plaintiff filed the Complaint commencing this action on July 6, 2015. (ECF No. 1). 17 On July 23, 2015, Plaintiff consented to Magistrate Judge jurisdiction in this action 18 pursuant to 28 U.S.C. § 636(c) (ECF No. 7), and no other parties have made an appearance. 19 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 20 California, the undersigned shall conduct any and all proceedings in the case until such time as 21 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 22 In Plaintiff’s Complaint, Plaintiff claims that he is not receiving a pain medication, 23 specifically Gabapentin. Plaintiff’s Complaint also states that there are administrative remedies 24 available to him, but that he has not completed the administrative remedies process. (Id. at p. 25 2). The California prison system provides for three levels of appellate review. Cal. Code Regs. 26 tit. 15, § 3084.1. Plaintiff went through the first and second level of review, but did not appeal 27 to the third level before filing the Complaint. (Id. at p. 5). The reason Plaintiff filed this 28 lawsuit before appealing to the third level is because Plaintiff was “in pain mentally and 1 1 physically and spiritually [Plaintiff is] suffering nobody to turn to but the courts for relief.” 2 (Id.). 3 Based on these statements, the Court issued an order for Plaintiff to show cause why the 4 case should not be dismissed without prejudice for failure to exhaust administrative remedies. 5 (ECF No. 14). Plaintiff filed a response, as well as documents (ECF Nos. 15 & 17). One of the 6 documents submitted by Plaintiff appears to be the response from the third and final level of 7 appellate review. (ECF No. 17, p. 1). It is dated August 24, 2015. (Id.). The case was filed on 8 July 6, 2015. 9 administrative remedies after filing the complaint in this case. (ECF No. 1). Thus, those documents show that Plaintiff exhausted his 10 42 U.S.C. § 1997e(a) states that “[n]o action shall be brought with respect to prison 11 conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in 12 any jail, prison, or other correctional facility until such administrative remedies as are available 13 are exhausted.” Exhaustion of administrative remedies must occur before the filing of the 14 Complaint. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). In other words, even if 15 Plaintiff finishes exhausting his administrative remedies after filing his complaint, this Court 16 must dismiss his complaint for failing to exhaust administrative remedies before filing the 17 complaint. The Court notes that a dismissal for failure to exhaust is without prejudice, so that 18 Plaintiff is free to file another case based on the same facts. 19 The Court will dismiss this case for failure to exhaust, without prejudice. The evidence 20 that Plaintiff filed suggests that, just like Plaintiff stated in his Complaint, he failed to exhaust 21 his administrative remedies before filing his Complaint. 22 Plaintiff may file another complaint based on the same facts once he has exhausted his 23 administrative remedies. As it appears that Plaintiff has now exhausted his administrative 24 remedies, Plaintiff may file another case right away with the same facts. 25 \\\ 26 \\\ 27 \\\ 28 \\\ 2 1 2 3 Therefore, based on the foregoing, it is HEREBY ORDERED this case is DISMISSED, without prejudice. IT IS FURTHER ORDERED that the Clerk of Court is directed to close this case. 4 5 6 IT IS SO ORDERED. Dated: December 29, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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