Prince v. Duffy et al

Filing 19

ORDER signed by Magistrate Judge Dale A. Drozd on 3/5/15 ORDERING that 7 Motion to Proceed IFP is DENIED; This action is dismissed without prejudice due to plaintiff's failure to exhaust available administrative remedies prior to filing suit as required. CASE CLOSED. (Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE PRINCE, 12 Plaintiff, 13 14 No. 2:15-cv-0280 DAD P v. ORDER BRIAN DUFFY et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). THE EXHAUSTION REQUIREMENT 20 By the Prison Litigation Reform Act of 1995 (“PLRA”), Congress amended 42 U.S.C. § 21 22 1997e to provide that “[n]o action shall be brought with respect to prison conditions under section 23 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other 24 correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. 25 § 1997e(a). The exhaustion requirement “applies to all inmate suits about prison life, whether 26 they involve general circumstances or particular episodes, and whether they allege excessive 27 force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). 28 ///// 1 1 The United States Supreme Court has ruled that exhaustion of prison administrative 2 procedures is mandated regardless of the relief offered through such procedures. See Booth v. 3 Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading 4 futility or other exceptions into the statutory exhaustion requirement. See id. at 741 n.6. 5 Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion 6 requirement by filing an untimely or otherwise procedurally defective administrative grievance or 7 appeal. See Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). “[T]o properly exhaust administrative 8 remedies prisoners „must complete the administrative review process in accordance with the 9 applicable procedural rules,‟ [ ] - rules that are defined not by the PLRA, but by the prison 10 grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. 11 at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison 12 system‟s requirements „define the boundaries of proper exhaustion.‟”). 13 In California, prisoners may appeal “any policy, decision, action, condition, or omission 14 by the department or its staff that the inmate or parolee can demonstrate as having a material 15 adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). 16 Most appeals progress through three levels of review. See id. § 3084.7. The third level of review 17 constitutes the decision of the Secretary of the California Department of Corrections and 18 Rehabilitation and exhausts a prisoner‟s administrative remedies. See id. § 3084.7(d)(3). A 19 California prisoner is required to submit an inmate appeal at the appropriate level and proceed to 20 the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 21 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). 22 23 DISCUSSION In this case, plaintiff alleges that he is not receiving adequate medical care at California 24 Health Care Facility. (Compl. at 3.) In his form complaint, plaintiff concedes that he has not 25 exhausted his administrative remedies prior to filing suit as required. (Id. at 1-2.) Specifically, 26 plaintiff acknowledges that there is a grievance procedure at California Health Care Facility. (Id. 27 at 1.) In addition, although plaintiff contends that he has submitted an inmate appeal concerning 28 the allegations set forth in his complaint, he concedes that he has not yet received a decision from 2 1 the first, second, or third formal levels of review. (Id. at 2.) Plaintiff also concedes in his 2 complaint that he has not appealed to the highest level of appeal available to him through the 3 administrative appeal process. (Id.) It is well established that “[a] prisoner‟s concession to nonexhaustion is a valid ground for 4 5 dismissal.” Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003), overruled on other grounds 6 by Albino, 747 F.3d 1162 (9th Cir. 2014). See also Sorce v. Garikpaetiti, Civil No. 14-CV-0327 7 BEN (JMA), (S.D. Cal. June 2, 2014) (relying on the decision in Albino and dismissing the 8 complaint on screening because “it is clear from the face of [plaintiff‟s] pleading that he has 9 conceded that he failed to exhaust all available administrative remedies . . . before he commenced 10 this action”). Accordingly, due to plaintiff‟s conceded failure to exhaust his administrative 11 remedies the court will dismiss plaintiff‟s complaint without prejudice.1 12 CONCLUSION 13 In accordance with the above, IT IS HEREBY ORDERED that: 14 1. Plaintiff‟s motion to proceed in forma pauperis (Doc. No. 7) is denied; and 15 2. This action is dismissed without prejudice due to plaintiff‟s failure to exhaust available 16 administrative remedies prior to filing suit as required. 17 Dated: March 5, 2015 18 19 20 DAD:9 prin0280.56 21 22 23 24 25 26 27 28 1 Plaintiff has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. § 636. (Doc. Nos. 8 & 17) 3

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