In re Bradford
Filing
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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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