Wright v. Raymond

Filing 5

ORDER signed by Magistrate Judge Dale A. Drozd on 2/10/14 ORDERING that Plaintiffs motion to proceed in forma pauperis 2 is denied; and this action is dismissed without prejudice for failure to exhaust administrative remedies prior to bringing this action.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANNY WRIGHT,

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Plaintiff,

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No. 2:13-cv-2455 DAD P

v.

ORDER

RAYMOND,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. For

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the reasons discussed herein, the court will dismiss this action.1
THE EXHAUSTION REQUIREMENT

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By the Prison Litigation Reform Act of 1995 (“PLRA”), Congress amended 42 U.S.C. §

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1997e to provide that “[n]o action shall be brought with respect to prison conditions under section

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1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other

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correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C.

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§ 1997e(a). The exhaustion requirement “applies to all inmate suits about prison life, whether

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Plaintiff has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. §
636. (Doc. No. 4)
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they involve general circumstances or particular episodes, and whether they allege excessive

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force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

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The United States Supreme Court has ruled that exhaustion of prison administrative

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procedures is mandated regardless of the relief offered through such procedures. See Booth v.

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Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading

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futility or other exceptions into the statutory exhaustion requirement. See id. at 741 n.6.

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Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion

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requirement by filing an untimely or otherwise procedurally defective administrative grievance or

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appeal. See Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). “[T]o properly exhaust administrative

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remedies prisoners ‘must complete the administrative review process in accordance with the

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applicable procedural rules,’ [] - rules that are defined not by the PLRA, but by the prison

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grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S.

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at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison

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system’s requirements ‘define the boundaries of proper exhaustion.’”) (quoting Jones, 549 U.S. at

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218).

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In California, prisoners may appeal “any policy, decision, action, condition, or omission

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by the department or its staff that the inmate or parolee can demonstrate as having a material

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adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a).

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Most inmate appeals progress through three levels of review. See id. § 3084.7. The third level of

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review constitutes the decision of the Secretary of the California Department of Corrections and

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Rehabilitation and exhausts a prisoner’s administrative remedies. See id. § 3084.7(d)(3). A

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California prisoner is required to submit an inmate appeal at the appropriate level and proceed to

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the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir.

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2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).

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A prisoner may be excused from complying with the PLRA’s exhaustion requirement if

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he establishes that the existing administrative remedies were effectively unavailable to him. See

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Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010). For example, where prison officials

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improperly screen out inmate grievances, they render administrative remedies effectively
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unavailable. See id. at 823. In such a case, “the inmate cannot pursue the necessary sequence of

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appeals . . . .” Id. See also Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (excusing an

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inmate’s failure to exhaust because he was precluded from exhausting administrative remedies by

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a warden’s mistaken instruction to him that a particular unavailable document was needed for him

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to pursue his inmate appeal).

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If the district court concludes that the prisoner has not exhausted administrative remedies

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and is not excused from doing so, “the proper remedy is dismissal of the claim without

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prejudice.” Wyatt, 315 F.3d at 1120. See also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir.

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2005). On the other hand, “if a complaint contains both good and bad claims, the court proceeds

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with the good and leaves the bad.” Jones, 549 U.S. at 221.

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DISCUSSION
On plaintiff’s original form complaint, Question II.A. asks “Is there a grievance procedure

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available at your institution?” Plaintiff has checked the “Yes” box. Question II.B. asks “Have

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you filed a grievance concerning the facts relating to this complaint?” Plaintiff has checked the

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“No” box. In the space provided for plaintiff to explain why not, plaintiff states that he has not

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filed an inmate grievance “because I never had a complaint” until now. (Compl. at 4.)
A prisoner’s concession to nonexhaustion is a valid ground for dismissal of an action. See

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Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003); see also Woodford, 548 U.S. at 85

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(proper exhaustion is mandatory and requires adherence to administrative rules); Booth, 532 U.S.

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at 741 (exhaustion is required regardless of the type of relief sought). Where, as here, the court

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concludes that plaintiff has not exhausted available administrative remedies, “the proper remedy

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is dismissal of the claim without prejudice.” Wyatt, 315 F.3d at 1120. Accordingly, given

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plaintiff’s acknowledgment of non-exhaustion, court will dismiss this action without prejudice.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is denied; and

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2. This action is dismissed without prejudice for failure to exhaust administrative

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remedies prior to bringing this action.

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Dated: February 10, 2014

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DAD:9
wrig2455.fte

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