Cruz v. Kasawa et al

Filing 7

ORDER OF DISMISSAL. Signed by Judge Claudia Wilken on 10/22/08. (scc, COURT STAFF) (Filed on 10/22/2008)

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1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. DR. KASAWA, et al., Defendants. / RAYMOND T. CRUZ, Plaintiff, No. C 08-01788 CW (PR) ORDER OF DISMISSAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Plaintiff, a state prisoner, has filed a pro se complaint under 42 U.S.C. 1983. forma pauperis. He has been granted leave to proceed in Plaintiff has not exhausted California's prison administrative process, however. 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 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. 1997e(a). Although once within the discretion of the district court, exhaustion in prisoner cases covered by 1997e(a) is now mandatory. 534 U.S. 516, 524 (2002). Porter v. Nussle, All available remedies must now be exhausted; those remedies "need not meet federal standards, nor must they be 'plain, speedy, and effective.'" omitted). Id. (citation Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 prerequisite to suit. (2001). Id.; Booth v. Churner, 532 U.S. 731, 741 Similarly, exhaustion is a prerequisite to all prisoner suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532. PLRA's exhaustion requirement requires "proper exhaustion" of available administrative remedies. Woodford v. Ngo, 548 U.S. 81, 94 (2006). The State of California provides its prisoners the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." Cal. Code Regs. tit. 15, 3084.1(a). It also provides them the right to file appeals alleging misconduct by correctional officers and officials. Id. 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution; (2) formal written appeal on a CDC 602 inmate appeal form; (3) second level appeal to the institution head or designee; and (4) third level appeal to the Director of the California Department of Corrections and Rehabilitation. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under 1997e(a). Id. at 1237-38. Non-exhaustion under 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Wyatt v. However, a complaint may be dismissed by the court for failure to exhaust if a prisoner 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "conce[des] to nonexhaustion" and "no exception to exhaustion applies." Id. at 1120. Here, Plaintiff concedes he has not Plaintiff has not presented exhausted his administrative remedies. any extraordinary circumstances which might permit him to be excused from complying with PLRA's exhaustion requirement. Cf. Booth, 532 U.S. at 741 n.6 (courts should not read "futility or other exceptions" into 1997e(a)). Accordingly, the complaint is DISMISSED without prejudice to refiling after exhausting California's prison administrative process. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (action must be dismissed without prejudice unless prisoner exhausted available administrative remedies before he filed suit, even if prisoner fully exhausts while the suit is pending). Plaintiff's request for appointment of counsel (docket no. 5) is DENIED. The Clerk of the Court shall enter judgment in accordance with this Order and close the file. This Order terminates Docket no. 5. IT IS SO ORDERED. Dated: 10/22/08 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE P:\PRO-SE\CW\CR.08\Cruz1788.dismiss-UNEXH.wpd 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RAYMOND T. CRUZ, Plaintiff, v. KASAWA et al, Defendant. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case Number: CV08-01788 CW CERTIFICATE OF SERVICE / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 22, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Raymond T. Cruz H-42586 A3-126L Salinas Valley State Prison P.O. Box 1050 Soledad, CA 93960 Dated: October 22, 2008 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk P:\PRO-SE\CW\CR.08\Cruz1788.dismiss-UNEXH.wpd 4

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