Easter v. Pruitt et al

Filing 7

ORDER OF DISMISSAL. Signed by Judge Charles R. Breyer on 8/8/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 8/12/2013)

Easter v. Pruitt et al

Doc. 7

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DANNY C. EASTER, AK-1133,
Plaintiff(s),

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vs.
NURSE PRUITT, et al.,
Defendant(s).

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No. C 13-1581 CRB (PR)
ORDER OF DISMISSAL

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Plaintiff, a State of California prisoner incarcerated at the Correctional

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Training Facility in Soledad, has filed a pro se complaint for damages under 42

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U.S.C. § 1983 claiming “inexcusable and lengthy delay” in receiving medical

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care. Docket #1 at 3. Plaintiff has not exhausted California’s prison

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administrative process, however.

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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

Dockets.Justia.com

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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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The California Department of Corrections and Rehabilitation (CDCR)
provides its inmates and parolees the right to appeal administratively “any

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departmental decision, action, condition, or policy which they can demonstrate as

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having an adverse effect upon their welfare.” Cal. Code Regs. tit. 15,

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§ 3084.1(a). It also provides its inmates the right to file administrative appeals

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alleging misconduct by correctional officers. See id. § 3084.1(e). In order to

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exhaust available administrative remedies within this system, a prisoner must

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submit his complaint on CDCR Form 602 and proceed through several levels of

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appeal: (1) informal level grievance filed directly with any correctional staff

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member, (2) first formal level appeal filed with one of the institution's appeal

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coordinators, (3) second formal level appeal filed with the institution head or

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designee, and (4) third formal level appeal filed with the CDCR director or

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designee. Id. § 3084.5; Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir.

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2009). This satisfies the administrative remedies exhaustion requirement under

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§ 1997e(a). Barry v. Ratelle, 985 F. Supp. 1235, 1237-38 (S.D. Cal. 1997).

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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 Director’s level of review before filing suit, but claims that

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he need not do so because the damages he seeks are not “attainable” thru

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CDCR’s administrative appeal process. Not so. The Supreme Court has made

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clear that exhaustion is a prerequisite to suit even when the prisoner seeks relief

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not available in grievance proceedings. See Booth, 532 U.S. at 741. Plaintiff did

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not exhaust available administrative remedies before filing suit or present any

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extraordinary circumstances which might compel that he be excused from doing

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so. Cf. Booth, 532 U.S. at 741 n.6 (courts should not read “futility or other

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exceptions” into § 1997e(a)).

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Accordingly, the complaint is DISMISSED without prejudice to refiling

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after exhausting CDCR’s administrative process. See McKinney v. Carey, 311

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F.3d 1198, 1199-1201 (9th Cir. 2002) (action must be dismissed without

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prejudice unless prisoner exhausted available administrative remedies before he

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filed suit, even if prisoner fully exhausts while the suit is pending).

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The clerk shall enter judgment in accordance with this order and close the

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file.

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SO ORDERED.

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DATED: Aug. 8, 2013

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CHARLES R. BREYER
United States District Judge

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