Douglas v. Warden San Quentin State Prison et al

Filing 18

ORDER OF DISMISSAL. Signed by Judge Claudia Wilken on 7/1/09. (scc, COURT STAFF) (Filed on 7/1/2009)

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

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRYON A. DOUGLAS, Plaintiff, v. WARDEN, SAN QUENTIN STATE PRISON, et al., Defendants. /

No. C 09-00950 CW (PR) ORDER OF DISMISSAL

Plaintiff, a state prisoner, has filed a pro se complaint under 42 U.S.C. § 1983. He also seeks leave to proceed in forma Plaintiff did not exhaust his

pauperis under 28 U.S.C. § 1915.

administrative remedies prior to filing this action, 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 prerequisite to suit. (2001). Id.; Booth v. Churner, 532 U.S. 731, 741

Similarly, exhaustion is a prerequisite to all prisoner

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

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 "conce[des] to nonexhaustion" and "no exception to exhaustion applies." Id. at 1120. Here, Plaintiff conceded that he had not 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

exhausted his administrative remedies at the time he filed his original complaint. Plaintiff has since filed an amended

complaint, in which he states that he has exhausted his available administrative remedies by filing a 602 inmate appeal relating to his claims. However, the Director's Level Decision on this inmate

appeal was not issued until April 20, 2009, after this action had been filed on March 4, 2009. An action must be dismissed unless

the prisoner exhausted his available administrative remedies before he filed suit, even if the prisoner fully exhausts while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.

2002); see Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (where administrative remedies are not exhausted before the prisoner sends his complaint to the court it will be dismissed even if exhaustion is completed by the time the complaint is actually filed). Therefore, this inmate appeal that concluded after the

action was filed did not exhaust any claim in this action. Accordingly, the complaint is DISMISSED without prejudice to refiling his exhausted claims in a new action. F.3d at 1199-1201. Plaintiff's request to proceed in forma pauperis is GRANTED. The Clerk of the Court shall enter judgment in accordance with this Order, terminate all pending motions, and close the file. IT IS SO ORDERED. Dated: 7/1/09 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE See McKinney, 311

P:\PRO-SE\CW\CR.09\Douglas0950.DisUnexh.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 BRYON A. DOUGLAS, Plaintiff, v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV09-00950 CW CERTIFICATE OF SERVICE

WARDEN SAN QUENTIN STATE et al, Defendant. /

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 July 1, 2009, 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.

Bryan Anthony Douglas G44753 Mule Creek State Prison P.O. Box 409020 Ione, CA 95640 Dated: July 1, 2009 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

P:\PRO-SE\CW\CR.09\Douglas0950.DisUnexh.wpd

4