Washington, Jr. v. Harris et al
Filing
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ORDER DISMISSING Action for Failure to Exhaust the Administrative Remedies, signed by Magistrate Judge Stanley A. Boone on 8/8/17. CASE CLOSED. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TRAVIS WASHINGTON JR.,
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Plaintiff,
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v.
SCOTT HARRIS, et al.,
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Defendants.
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Case No.: 1:17-cv-00855-SAB (PC)
ORDER DISMISSING ACTION FOR FAILURE
TO EXHAUST THE ADMINISTRATIVE
REMEDIES
[ECF No. 11]
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Plaintiff Travis Washington is appearing pro se in this civil rights action pursuant to 42 U.S.C.
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§ 1983. Plaintiff consented to United States Magistrate Judge jurisdiction on July 10, 2017. (ECF No.
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9.)
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Plaintiff filed the initial complaint on June 22, 2017, and a first amended complaint on July 24,
2017, which is currently before the Court for screening.
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I.
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SCREENING REQUIREMENT
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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). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[]
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled
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to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare
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recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
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(2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the
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deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Prisoners
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proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to
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have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)
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(citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which requires
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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for
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the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969
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(9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and
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“facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility
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standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
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II.
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COMPLAINT ALLEGATIONS
Plaintiff names Associate Warden J. Jeeter, counselor B. McKinney, counsel Ms. Drake, and
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lieutenant Mr. Philpott, as Defendants.
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One of Plaintiff’s teeth has a filling that is lose and out of place. Plaintiff filed a medical form
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requesting medical treatment. The dentist told Plaintiff that there was nothing that could be done until
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he was transferred to another facility.
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Plaintiff was programming in the mainline section of North Kern State Prison but was placed
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back into the reception center by the counselors and Associate Warden J. Jeeter instead of remaining
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in administrative segregation where he was entitled to a specific program consisting of telephone calls,
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full canteen privileges, and contact family visitation. As a result of the failure to provide proper
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programming, Plaintiff contemplated suicide, his marriage was ruined, and suffered emotional
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damage.
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III.
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DISCUSSION
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A.
Exhaustion of Administrative Remedies
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Pursuant to the Prison Litigation Reform Act (PLRA) of 1996, “[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 prisoner
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confined in any jail, prison, or other correctional facility until such administrative remedies as are
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available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available
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administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v.
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Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief
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sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S.
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731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v.
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Nussle, 435 U.S. 516, 532 (2002).
Although the “failure to exhaust is an affirmative defense under the PLRA,” a prisoner’s
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complaint may be subject to dismissal for failure to state a claim when an affirmative defense appears
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on its face. Jones v. Bock, 549 U.S. at 202, 215; see also Albino v. Baca, 747 F.3d 1162, 1169 (9th
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Cir. 2014) (en banc) (noting that where a prisoner’s failure to exhaust is clear from the fact of the
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complaint, his complaint is subject to dismissal for failure to state a claim, even at the screening
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stage); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to
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nonexhaustion is a valid ground for dismissal[.]”), overruled on other grounds by Albino, 747 F.3d at
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1166.
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In California, a prison inmate satisfies the administrative exhaustion requirement by following
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the procedures set forth in sections 3084.1 through 3084.8 of Title 15 of the California Code of
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Regulations. An inmate “may appeal any policy, decision, action, condition, or omission by the
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department or its staff that the inmate…can demonstrate as having a material adverse effect upon his
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or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). The regulations require the
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prisoner to proceed through all three levels of review. See Cal. Code Regs. tit. 15, § 3084.2(a). A
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decision at the third level of review, known as the director’s level of review, is not appealable and
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constitutes the third level of administrative review. Id.
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On the complaint form, Plaintiff acknowledges that there is an inmate appeal process available
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at the institution and he has filed an appeal regarding the facts contained in the complaint. (Compl. at
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2.) However, Plaintiff indicates that the process is not complaint and states “I[’]m still waiting for a
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response from Office of Appeals in Sacramento. I’ve been transferred to another prison.” (Id.)
Plaintiff’s failure to exhaust his administrative remedies prior to filing suit is clear from the
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face of the complaint. Based on Plaintiff’s concession of nonexhaustion, this action must be dismissed
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without prejudice. Jones, 549 U.S. at 211; McKinney, 311 F.3d at 1199-1201; see also City of
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Oakland, Cal. v. Hotels.com LP, 572 F.3d 958, 962 (9th Cir. 2009) (“[F]ailure to exhaust the
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administrative remedies is properly treated as a curable defect and should generally result in a
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dismissal without prejudice.”); Albino, 747 F.3d at 1170 (“Exhaustion should be decided, if feasible,
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before reaching the merits of a prisoner’s claim”); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
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2010) (the “exhaustion requirement does not allow a prisoner to file a complaint addressing non-
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exhausted claims.”) (citing McKinney, 311 F.3d at 1199). Although the Court would typically grant
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Plaintiff leave to amend in light of his pro se status, amendment is futile in this instance because the
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failure to exhaust cannot be cured by the allegation of additional facts. See Lopez v. Smith, 203 F.3d
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1122, 1127 (9th Cir. 2000); see also Schmier v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d
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817, 824 (9th Cir. 2002) (recognizing “[f]utility of amendment” as a proper basis for dismissal without
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leave to amend).
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IV.
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CONCLUSION
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Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s action is dismissed, without
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prejudice, for failure to exhaust the administrative remedies prior to filing suit. 42 U.S.C. § 1997e(a).
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IT IS SO ORDERED.
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Dated:
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August 8, 2017
UNITED STATES MAGISTRATE JUDGE
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