Roberts v. San Bruno County Jail et al

Filing 6

ORDER OF DISMISSAL. Signed by Judge Charles R. Breyer on 2/22/2012. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 2/23/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TYE ROBERTS, #441672
Plaintiff(s),

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vs.
SAN BRUNO COUNTY JAIL, et al.,
Defendant(s).

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No. C 11-5330 CRB (PR)
ORDER OF DISMISSAL

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Plaintiff, a prisoner at the San Francisco County Jail in San Bruno, has

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filed a pro se complaint under 42 U.S.C. § 1983 alleging that a jail nurse ignored

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his request for information on tuberculosis in prison. Plaintiff is concerned that

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he shared a cell with another prisoner who has tuberculosis. Plaintiff filed a

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grievance, but concedes that he did not exhaust the jail's administrative process

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by proceeding to the highest level of appeal available to him.

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The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. §

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1997e to provide that "[n]o action shall be brought with respect to prison

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conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner

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confined in any jail, prison, or other correctional facility until such administrative

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remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Although once

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within the discretion of the district court, exhaustion in prisoner cases covered by

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§ 1997e(a) is now mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). All

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available remedies must now be exhausted; those remedies "need not meet

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federal standards, nor must they be 'plain, speedy, and effective.'" Id. (citation

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omitted). Even when the prisoner seeks relief not available in grievance

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proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.;

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Booth v. Churner, 532 U.S. 731, 741 (2001). Similarly, exhaustion is a

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prerequisite to all prisoner suits about prison life, whether they involve general

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circumstances or particular episodes, and whether they allege excessive force or

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some other wrong. Porter, 534 U.S. at 532. PLRA's exhaustion requirement

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requires "proper exhaustion" of available administrative remedies. Woodford v.

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Ngo, 548 U.S. 81, 93 (2006).

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Nonexhaustion under § 1997e(a) is an affirmative defense which should

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be brought by defendant(s) in an unenumerated motion to dismiss under Federal

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Rule of Civil Procedure 12 (b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.

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2003). But a complaint may be dismissed by the court for failure to exhaust if a

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prisoner "conce[des] to nonexhaustion" and "no exception to exhaustion applies."

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Id. at 1120. Here, plaintiff concedes he did not exhaust available administrative

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remedies through the highest level available to him before filing suit and sets

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forth no reason why he should be excused from doing so. Nor has plaintiff

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presented any extraordinary circumstances which might compel that he be

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excused from doing so. Cf. Booth, 532 U.S. at 741 n.6 (courts should not read

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"futility or other exceptions" into § 1997e(a)).

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Accordingly, the complaint is DISMISSED without prejudice to refiling

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after exhausting the jail's administrative process through the highest level

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available to plaintiff. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th

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Cir. 2002) (action must be dismissed without prejudice unless prisoner exhausted

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available administrative remedies before he filed suit, even if prisoner fully

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exhausts while the suit is pending).

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The clerk shall enter judgment in accordance with this order, terminate all

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pending motions as moot, and close the file.

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SO ORDERED.

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DATED: Feb. 22, 2012

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CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\CR.11\Roberts, T.11-5330.dismissal.wpd

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