Lumsey v. California State Prison

Filing 10

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/27/2015 DISMISSING this action without prejudice for failure to exhaust administrative remedies prior to fiing suit. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICKY DURANT LUMSEY,

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No. 2:15-cv-0620-EFB P

Plaintiff,
v.
CALIFORNIA STATE PRISON, et al.,

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ORDER DISMISSING ACTION FOR
FAILURE TO EXHAUST ADMINISTRATVE
REMEDIES

Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983.1 He concedes that he did not present the facts in his complaint for review through

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the administrative grievance procedure prior to commencing this action. See ECF No. 1, § I.

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This action must therefore be dismissed for plaintiff’s failure to exhaust administrative remedies.

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See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (prisoner’s concession to

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nonexhaustion is valid ground for dismissal of an action, so long as no exception applies),

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overruled on other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc).

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The Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e was amended to provide
that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title,

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local
Rules, Appx. A, at (k)(4).
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or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility

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until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This

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requirement is mandatory and unequivocal. Booth v. Churner, 532 U.S. 731, 741 (2001);

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McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (“Congress could have written a statute

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making exhaustion a precondition to judgment, but it did not. The actual statute makes

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exhaustion a precondition to suit.”). Therefore, a prisoner must exhaust available administrative

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remedies before filing any papers in federal court and is not entitled to a stay of judicial

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proceedings in order to exhaust. Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006);

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McKinney, 311 F.3d 1198.

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

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the inmate can demonstrate “as having an adverse effect upon his or her welfare.” Cal. Code

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Regs. tit. 15, § 3084.1(a). The grievance process, as defined by California regulations, has three

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levels of review to address an inmate’s claims, subject to certain exceptions. See Cal. Code Regs.

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tit. 15, § 3084.7. Administrative remedies generally are exhausted once a plaintiff has received a

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“Director’s Level Decision,” or third level review, with respect to his issues or claims. Id.,

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§ 3084.1(b).

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Here, plaintiff alleges that he was injured while performing his work duties at the prison.

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ECF No. 1, § III. He concedes that there is a grievance procedure available to him and that he

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never filed a grievance regarding his allegations. Id., § I(B)—(C). He states that he did not

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pursue a grievance because the “institutional appeal process would not compensate for damages

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that were done to petitioner during work duties.” Id., § I(D). Plaintiff appears to believe that

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exhaustion is not required if his claim relates to a work injury or seeks monetary compensation.

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Exhaustion, however, is mandatory in all actions concerning “prison conditions.” See 42 U.S.C.

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§ 1997e. “Prison conditions” subject to the exhaustion requirement have been defined broadly as

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“the effects of actions by government officials on the lives of persons confined in prison . . . .”

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18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence

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v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). Plaintiff’s complaint regarding being injured while

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working at the prison plainly falls into this category, and plaintiff’s proposed exception to the
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exhaustion requirement does not excuse his failure to complete the administrative review process.

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See Booth, 532 US at 741 n. 6 (stating courts should not read “futility or other exceptions” into

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§ 1997e(a)); Porter v. Nussle, 534 U.S. 516, 524 (2002) (“Even when the prisoner seeks relief not

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available in grievance proceedings, notably money damages, exhaustion is a prerequisite to

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suit.”); id. (“All ‘available’ remedies must . . . be exhausted; those remedies need not meet federal

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standards, nor must they be ‘plain, speedy, and effective.’”)

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“Proper exhaustion demands compliance with an agency’s deadlines and other critical

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procedural rules because no adjudicative system can function effectively without imposing some

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orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90 (2006).

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The concessions in plaintiff’s complaint demonstrate that he has not “properly exhausted” his

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claims by pursuing all levels of administrative review available to him, and that there is no

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applicable exception to the exhaustion requirement. This action must therefore be dismissed

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without prejudice. See Wyatt, 315 F.3d at 1120.

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Accordingly, IT IS HEREBY ORDERED that this action is dismissed without prejudice

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for failure to exhaust administrative remedies prior to filing suit. The Clerk is directed to close

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the case.

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DATED: April 27, 2015.

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