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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE PRINCE,

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Plaintiff,

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No. 2:15-cv-0280 DAD P

v.

ORDER

BRIAN DUFFY et al.,

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Defendants.

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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. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(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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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.‟”).

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

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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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DISCUSSION
In this case, plaintiff alleges that he is not receiving adequate medical care at California

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Health Care Facility. (Compl. at 3.) In his form complaint, plaintiff concedes that he has not

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exhausted his administrative remedies prior to filing suit as required. (Id. at 1-2.) Specifically,

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plaintiff acknowledges that there is a grievance procedure at California Health Care Facility. (Id.

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at 1.) In addition, although plaintiff contends that he has submitted an inmate appeal concerning

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the allegations set forth in his complaint, he concedes that he has not yet received a decision from
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the first, second, or third formal levels of review. (Id. at 2.) Plaintiff also concedes in his

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complaint that he has not appealed to the highest level of appeal available to him through the

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administrative appeal process. (Id.)
It is well established that “[a] prisoner‟s concession to nonexhaustion is a valid ground for

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dismissal.” Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003), overruled on other grounds

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by Albino, 747 F.3d 1162 (9th Cir. 2014). See also Sorce v. Garikpaetiti, Civil No. 14-CV-0327

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BEN (JMA), (S.D. Cal. June 2, 2014) (relying on the decision in Albino and dismissing the

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complaint on screening because “it is clear from the face of [plaintiff‟s] pleading that he has

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conceded that he failed to exhaust all available administrative remedies . . . before he commenced

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this action”). Accordingly, due to plaintiff‟s conceded failure to exhaust his administrative

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remedies the court will dismiss plaintiff‟s complaint without prejudice.1

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CONCLUSION

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff‟s motion to proceed in forma pauperis (Doc. No. 7) is denied; and

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2. This action is dismissed without prejudice due to plaintiff‟s failure to exhaust available

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administrative remedies prior to filing suit as required.

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Dated: March 5, 2015

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DAD:9
prin0280.56

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Plaintiff has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. §
636. (Doc. Nos. 8 & 17)
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