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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C-12-0897 TEH (PR)

PATRICK BRADFORD,

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Plaintiff,

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ORDER OF DISMISSAL

v.

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Defendants.

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/

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Plaintiff, a state prisoner, has filed this pro se civil

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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

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Federal law, by a prisoner confined in any jail, prison, or other

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correctional facility until such administrative remedies as are

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available are exhausted.”

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mandatory and no longer left to the discretion of the district

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court.

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Churner, 532 U.S. 731, 739 (2001)).

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administrative remedies must be exhausted and such remedies “need

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not meet federal standards, nor must they be ‘plain, speedy[] and

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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

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Booth, 532 U.S. at 739).

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“proper exhaustion” of available administrative remedies, “which

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means using all steps that the agency holds out, and doing so

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properly (so that the agency addresses the issues on the merits).”

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Woodford, 548 U.S. at 90 (emphasis in original and internal

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quotations and citations omitted).

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be satisfied prior to the commencement of the action; exhaustion

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subsequent to the filing of suit will not suffice

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Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002) (action must be

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dismissed without prejudice unless prisoner exhausted available

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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 PLRA exhaustion requirement is to “afford[] corrections

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officials time and opportunity to address complaints internally

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before allowing the initiation of a federal case.”

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at 525.

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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

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The exhaustion requirement must

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without prejudice.

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2003).

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Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.

Here, plaintiff has filed a motion an extension of time to

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file his in forma pauperis application and his complaint so that he

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may exhaust his administrative remedies.

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states that he sent his third level appeal to Sacramento for a

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Director Level Response on March 8, 2012, and has not yet received a

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response.

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that plaintiff has failed to exhaust his administrative remedies

Id.

Doc. #4 at 1-2.

Plaintiff

Based on plaintiff’s assertions, the Court finds

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with regard to his claim that prison officials have refused to treat

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his chronic lower back pain.

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Plaintiff's complaint accordingly is DISMISSED without

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prejudice to refiling after exhausting available administrative

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remedies.

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(court may dismiss sua sponte for failure to exhaust administrative

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remedies).

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and close the file.

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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.

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DATED

03/26/2012
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\CR.12\Bradford-12-897-dismiss failure to exhaust.wpd

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