Johnson v. Risenhoover et al

Filing 22

ORDER DISMISSING CASE. Signed by Judge Richard Seeborg on 12/16/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 12/16/2011)

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*E-Filed 12/16/11*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

United States District Court
For the Northern District of California

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v.
RISENHOOVER, et al.,
Defendants.
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ORDER OF DISMISSAL

Plaintiff,

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No. C 10-5638 RS (PR)

BYRON JOHNSON,

INTRODUCTION
This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state
prisoner. For the reasons stated herein, defendants’ unopposed motion to dismiss on grounds
that plaintiff failed to exhaust his administrative remedies is GRANTED, and the action is
hereby DISMISSED.
BACKGROUND
In his amended complaint, plaintiff alleges that defendants, employees of Pelican Bay
State Prison, failed to provide constitutionally adequate accommodations in response to
plaintiff’s vision impairments. Defendants assert that plaintiff failed to exhaust his
administrative remedies until May 17, 2011, five months after the instant action was filed.
These assertions are undisputed, plaintiff not having filed an opposition.

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No. C 10-5638 RS (PR)
ORDER OF DISMISSAL

DISCUSSION

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Prisoners must properly exhaust their administrative remedies before filing suit in

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federal court. “No action shall be brought with respect to prison conditions under [42 U.S.C.

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§ 1983], 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.”

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42 U.S.C. § 1997e(a). Exhaustion is mandatory and is no longer left to the discretion of the

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district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v. Churner, 532 U.S.

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731, 739 (2001)).

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An action must be dismissed unless the prisoner exhausted his available

United States District Court
For the Northern District of California

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administrative remedies before he or she filed suit, even if the prisoner fully exhausts while

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the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see Vaden v.

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Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (where administrative remedies are not

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exhausted before the prisoner sends his complaint to the court it will be dismissed even if

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exhaustion is completed by the time the complaint is actually filed).

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According to the undisputed record, plaintiff’s claims were not exhausted prior to the

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filing of his suit. Accordingly, defendants’ motion to dismiss the action is GRANTED, and

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all claims are DISMISSED without prejudice to plaintiff refiling his complaint.

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IT IS SO ORDERED.

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DATED: December 16, 2011
RICHARD SEEBORG
United States District Judge

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No. C 10-5638 RS (PR)
ORDER OF DISMISSAL