In re Bradford

Filing 5

ORDER OF DISMISSAL. Signed by Judge Thelton E. Henderson on 03/26/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 3/27/2012)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 11 No. C-12-0897 TEH (PR) PATRICK BRADFORD, 12 Plaintiff, 13 ORDER OF DISMISSAL v. 14 15 Defendants. 16 / 17 Plaintiff, a state prisoner, has filed this pro se civil 18 19 20 21 22 23 24 25 26 27 28 rights action pursuant to 42 U.S.C. § 1983 alleging that the prison officials at San Quentin State Prison in San Quentin, California and at Correctional Training Facility-Soledad in Soledad, California, have refused to treat his chronic lower back pain. Doc. #1. For the reasons set forth below, this action is DISMISSED without prejudice. I. The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other 1 Federal law, by a prisoner confined in any jail, prison, or other 2 correctional facility until such administrative remedies as are 3 available are exhausted.” 4 mandatory and no longer left to the discretion of the district 5 court. 6 Churner, 532 U.S. 731, 739 (2001)). 7 administrative remedies must be exhausted and such remedies “need 8 not meet federal standards, nor must they be ‘plain, speedy[] and 9 effective.’” 42 U.S.C. § 1997e(a). Exhaustion is Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v. Under the PLRA, all available Porter v. Nussle, 534 U.S. 516, 524 (2002) (citing 10 Booth, 532 U.S. at 739). 11 “proper exhaustion” of available administrative remedies, “which 12 means using all steps that the agency holds out, and doing so 13 properly (so that the agency addresses the issues on the merits).” 14 Woodford, 548 U.S. at 90 (emphasis in original and internal 15 quotations and citations omitted). 16 be satisfied prior to the commencement of the action; exhaustion 17 subsequent to the filing of suit will not suffice 18 Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002) (action must be 19 dismissed without prejudice unless prisoner exhausted available 20 administrative remedies before he filed suit, even if prisoner fully 21 exhausts while the suit is pending). 22 the PLRA exhaustion requirement is to “afford[] corrections 23 officials time and opportunity to address complaints internally 24 before allowing the initiation of a federal case.” 25 at 525. 26 administrative remedies, the proper remedy is dismissal of the claim The PLRA’s exhaustion requirement requires McKinney v. Broadly stated, the purpose of Porter, 534 U.S. If the court concludes a prisoner has not exhausted 27 28 The exhaustion requirement must 2 1 without prejudice. 2 2003). 3 Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. Here, plaintiff has filed a motion an extension of time to 4 file his in forma pauperis application and his complaint so that he 5 may exhaust his administrative remedies. 6 states that he sent his third level appeal to Sacramento for a 7 Director Level Response on March 8, 2012, and has not yet received a 8 response. 9 that plaintiff has failed to exhaust his administrative remedies Id. Doc. #4 at 1-2. Plaintiff Based on plaintiff’s assertions, the Court finds 10 with regard to his claim that prison officials have refused to treat 11 his chronic lower back pain. 12 Plaintiff's complaint accordingly is DISMISSED without 13 prejudice to refiling after exhausting available administrative 14 remedies. 15 (court may dismiss sua sponte for failure to exhaust administrative 16 remedies). 17 and close the file. 18 See White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997) The Clerk shall terminate all pending motions as moot IT IS SO ORDERED. 19 20 21 DATED 03/26/2012 THELTON E. HENDERSON United States District Judge 22 23 G:\PRO-SE\TEH\CR.12\Bradford-12-897-dismiss failure to exhaust.wpd 24 25 26 27 28 3

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