Derwin Butler, Sr. v. Escamilla et al
Filing
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ORDER DISMISSING COMPLAINT for Failure to Exhaust Administrative Remedies and ORDER Directing Clerk to Terminate Motions and Close Case signed by Magistrate Judge Michael J. Seng on 9/25/2017. CASE CLOSED. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DERWIN BUTLER, SR.,
Plaintiff,
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v.
ESCAMILLA, et al.,
Case No. 1:17-cv-00623-MJS (HC)
ORDER DISMISSING COMPLAINT FOR
FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES
CLERK TO TERMINATE MOTIONS AND
CLOSE CASE
Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights
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action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate Judge
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jurisdiction. (ECF No. 4.) No other parties have appeared in the action. His second
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amended complaint is before the Court for screening.
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On September 12, 2017, the Court ordered Plaintiff to show cause why the action
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should not be dismissed for failure to exhaust administrative remedies, in light of the
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following statement in the “Exhaustion of Administrative Remedies” portion of the form
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complaint: “First level response, bypass. Accepted at the second level of review granted
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in part. Third level still waiting on response.” (ECF No. 19 (quoting ECF No. 17).) On
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September 21, 2017, Plaintiff responded by submitting a copy of a July 24, 2017 letter
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from the CDCR Office of Appeals, which states that a third level appeal submitted by
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Plaintiff was rejected. (ECF No. 20.)
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I.
Legal Standard
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Pursuant to the Prison Litigation Reform Act (“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
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law, by a prisoner confined in any jail, prison, or other correctional facility until such
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administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
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Therefore, prisoners are required to exhaust all available administrative remedies prior to
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filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007). This requirement is mandatory
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regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001).
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Because exhaustion must precede the filing of the complaint, compliance with
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§ 1997e(a) is not achieved by exhausting administrative remedies while the lawsuit is
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pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).
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A prison inmate in California satisfies the administrative exhaustion requirement
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by following the procedures set forth in §§ 3084.1-3084.8 of Title 15 of the California
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Code of Regulations. In California, inmates “may appeal any policy, decision, action,
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condition, or omission by the department or its staff that the inmate . . . can demonstrate
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as having a material adverse effect upon his or her health, safety, or welfare.” Cal Code
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Regs. tit. 15, § 3084.1(a). The inmate must submit their appeal on the proper form, and
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is required to identify the staff member(s) involved as well as describing their
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involvement in the issue. See Cal. Code Regs. tit. 15, § 3084.2(a). These regulations
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require the prisoner to proceed through three levels of appeal. See Cal. Code Regs. tit.
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15, §§ 3084.1(b), 3084.2, 3084.7. A decision at the third formal level, which is also
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referred to as the director’s level, is not appealable and concludes a prisoner's
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departmental administrative remedy. See id.
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“[I]nmates are not required to specially plead or demonstrate exhaustion in their
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complaints.” Jones, 549 U.S. at 216. The PLRA’s exhaustion requirement is not
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jurisdictional; it creates an affirmative defense that defendants must plead and prove. Id.
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However, “in those rare cases where a failure to exhaust is clear from the face of the
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complaint,” dismissal for failure to state a claim is appropriate, even at the screening
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stage. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014). See also Wyatt v. Terhune,
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315 F.3d 1108, 1120 (9th Cir. 2003) (stating that “[a] prisoner's concession to
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nonexhaustion is a valid ground for dismissal”), overruled on other grounds by Albino,
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747 F.3d at 1166; Sorce v. Garikpaetiti, No. 14-cv-0327 BEN (JMA), 2014 WL 2506213,
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at *2 (S.D. Cal. June 2, 2014) (relying on Albino and dismissing the complaint on
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screening because “it is clear from the face of [plaintiff's] pleading that he has conceded
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that he failed to exhaust all available administrative remedies . . . before he commenced
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this action”) (emphasis in original).
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II.
Discussion
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The face of Plaintiff’s complaint makes clear that Plaintiff had not completed the
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administrative appeal process at the time of filing his second amended complaint. (ECF
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No. 17.) The letter presented by Plaintiff in his response to the order to show cause
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further demonstrates that Plaintiff had not exhausted the administrative remedies
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available to him. (ECF No. 20.) Rather, that letter, dated after the second amended
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complaint was filed, shows that such remedies remained available. Again, Plaintiff may
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not exhaust remedies while the suit is pending. Lira v. Herrera, 427 F.3d 1164, 1170-71
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(9th Cir. 2005); 42 U.S.C. § 1997e(a). The action therefore must be dismissed.
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III.
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Conclusion and Order
Based on the foregoing, it is HEREBY ORDERED that:
1. The second amended complaint is dismissed without prejudice for failure to
exhaust administrative remedies;
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2. The Clerk of Court is directed to terminate any pending motions and close
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this case.
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IT IS SO ORDERED.
Dated:
September 25, 2017
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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