Harvey v. Jaquez

Filing 3

ORDER OF DISMISSAL. Petitioner's complaint is DISMISSED without prejudice to refiling after exhausting California's prison administrative remedies. Signed by Judge Vaughn R Walker on 7/16/2009. (Attachments: # 1 proof of service)(cgk, COURT STAFF) (Filed on 7/16/2009)

1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JAMES EARL HARVEY, aka ABDUL O SHAKUR, Petitioner, v WARDEN JACQUEZ, Respondent. / Petitioner, a prisoner at Pelican Bay State Prison ("PBSP"), has filed a pro se petition for writ of habeas corpus, which, given the nature of the allegations contained therein, the court construes as a civil rights complaint filed pursuant to 42 USC section 1983. Petitioner alleges that on May 1, 2009, a PBSP ORDER OF DISMISSAL No C-09-2353 VRW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

official confiscated a letter petitioner attempted to send to a New York attorney employed by the National Association for the Advancement of Colored People and subsequently issued a Rules Violation Report after determining "that the legal mail in question was suspicious in nature and cunningly disguised as legal mail." Doc #1 at 29. The item in question contained "five (5) pages of

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hand written material * * * entitled `The Abdul Shakur Fairness and Restoration Act of 2009 (ASFRA-2009).'" Id. Petitioner alleges the

official's conduct violated his constitutional rights, but acknowledges that he has failed to exhaust available administrative remedies with respect to this claim and asks the court to excuse the failure. Id at 5.

The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 USC section 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 USC § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 USC § 1997e(a). Although once

within the discretion of the district court, exhaustion in prisoner cases covered by section 1997e(a) is now mandatory. Nussle, 534 US 516, 524 (2002). Porter v

All available remedies now must be

exhausted; those remedies "need not meet federal standards, nor must they be `plain, speedy, and effective.'" Id (citation omitted).

Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id; Booth v Churner, 532 US 731, 741 (2001). Similarly,

exhaustion is a prerequisite to all prisoner suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 US at 532. PLRA's exhaustion requirement

requires "proper exhaustion" of available administrative remedies. Woodford v Ngo, 548 US 81, 92-3 (2006).

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The State of California provides its prisoners the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." Cal Code Regs tit 15, § 3084.1(a) (2009).

It also provides them the right to file appeals alleging misconduct by correctional staff. See id § 3084.1(e). To exhaust available

administrative remedies within this system, "a prisoner must proceed through several levels of appeal: (1) informal resolution; (2)

formal written appeal on a [California Department of Corrections and Rehabilitation ("CDCR")] 602 inmate appeal form; (3) second level appeal to the institution head or designee; and (4) third level appeal to the director of the [CDCR]." Barry v Ratelle, 985 F Supp

1235, 1237 (SD Cal 1997); Cal Code Regs tit 15, § 3084.5 (2009). An action must be dismissed unless the prisoner exhausted his available administrative remedies before he or she filed suit, even if the prisoner fully exhausts while the suit is pending. McKinney v Carey, 311 F3d 1198, 1199 (9th Cir 2002); see Vaden v Summerhill, 449 F3d 1047, 1051 (9th Cir 2006) (where administrative remedies are not exhausted before the prisoner sends his complaint to the court it will be dismissed even if exhaustion is completed by the time the complaint is actually filed). Petitioner concedes that he has not exhausted his administrative remedies, but states "the administrative grievance process is not an option due to the length (period) most of the punishment would be served by the time the administrative process is exhausted." Doc #1 at 5.

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The PLRA, however, does not provide for any exceptions to the statutory exhaustion requirement. Accordingly, petitioner's

complaint is DISMISSED without prejudice to refiling after exhausting California's prison administrative remedies. McKinney, 311 F3d at 1199-1201; Vaden, 449 F3d at 1051. The clerk is directed to terminate any pending motions as moot, enter judgment in accordance with this order and close the file. See

IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge

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