Beard v. Harrington

Filing 11

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 5/13/11. (lrc, COURT STAFF) (Filed on 5/16/2011)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 ROBERT BEARD, 4 No. C 10-03837 SBA (PR) ORDER OF DISMISSAL Plaintiff, 5 6 7 v. WARDEN HARRINGTON, 8 Defendant. / 9 United States District Court For the Northern District of California 10 The following background is taken from the Court's February 1, 2011 Order: 11 Plaintiff filed the instant pro se civil rights complaint under 42 U.S.C. § 1983 as well as a request for leave to proceed in forma pauperis. On October 27, 2010, the Court granted Plaintiff's request for leave to proceed in forma pauperis, and the Clerk of the Court mailed a copy of the order to Plaintiff. On November 10, 2010, Plaintiff's copy of the October 27, 2010 Order was returned as undeliverable with a notation: "Return to Sender -- Inmate Refused." 12 13 14 (Feb. 1, 2011 Order at 1.) Therefore, the Court ordered, inter alia, as follows: 15 16 17 18 19 In the instant case, mail sent to Plaintiff was returned as undeliverable with a notation: "Return to Sender -- Inmate Refused." Accordingly, it is in the interests of justice and judicial efficiency for the Court to establish whether Plaintiff intends to continue to prosecute this action. Plaintiff shall file a notice of his continued intent to prosecute no later than thirty (30) days of the date of this Order. Failure to do so will result in the dismissal of this action without prejudice for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. See Malone, 833 F.2d at 133 (the district court should afford the litigant prior notice before dismissing for failure to prosecute). 20 (Id. at 1-2.) 21 On February 10, 2011, Plaintiff filed a notice of his continued intent to prosecute as well as a 22 document entitled, "Complaint Demand for Jury Trial." 23 The Court now reviews Plaintiff's original complaint and his "Complaint Demand for Jury 24 Trial," and it finds that Plaintiff has not exhausted California's prison administrative process. 25 The Prison Litigation Reform Act of 1995 (PLRA) amended 42 U.S.C. § 1997e to provide 26 that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 27 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 28 administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Although once 1 within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now 2 mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). All available remedies must now be 3 exhausted; those remedies "need not meet federal standards, nor must they be 'plain, speedy, and 4 effective.'" Id. (citation omitted). Even when the prisoner seeks relief not available in grievance 5 proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.; Booth v. Churner, 6 532 U.S. 731, 741 (2001). Similarly, exhaustion is a prerequisite to all prisoner suits about prison 7 life, whether they involve general circumstances or particular episodes, and whether they allege 8 excessive force or some other wrong. Porter, 534 U.S. at 532. PLRA's exhaustion requirement 9 requires "proper exhaustion" of available administrative remedies. Woodford v. Ngo, 548 U.S. 81, United States District Court For the Northern District of California 10 94 (2006). 11 The State of California provides its prisoners the right to appeal administratively "any 12 departmental decision, action, condition or policy perceived by those individuals as adversely 13 affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). It also provides them the right to file 14 appeals alleging misconduct by correctional officers/officials. Id. § 3084.1(e). In order to exhaust 15 available administrative remedies within this system, a prisoner must proceed through several levels 16 of appeal: (1) informal resolution; (2) formal written appeal on a CDC 602 inmate appeal form; 17 (3) second level appeal to the institution head or designee; and (4) third level appeal to the Director 18 of the California Department of Corrections and Rehabilitation. Barry v. Ratelle, 985 F. Supp. 1235, 19 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's 20 level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38. 21 Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by 22 defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). 23 Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). However, a complaint may be dismissed by 24 the court for failure to exhaust if a prisoner "conce[des] to nonexhaustion" and "no exception to 25 exhaustion applies." Id. at 1120. Here, Plaintiff concedes he has not exhausted his administrative 26 remedies. In his original complaint, under the heading "Exhaustion of Administrative Remedies," he 27 was asked "Is the process completed?" and he answered "No." (Compl. at 2.) He adds that he has 28 2 1 "been waiting for a response from the appeals coordinator." (Id.) Plaintiff has not presented any 2 extraordinary circumstances which might compel that he be excused from complying with PLRA's 3 exhaustion requirement. Cf. Booth, 532 U.S. at 741 n.6 (courts should not read "futility or other 4 exceptions" into § 1997e(a)). 5 Accordingly, the complaint is DISMISSED without prejudice to refiling after exhausting 6 California's prison administrative process. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th 7 Cir. 2002) (action must be dismissed without prejudice unless prisoner exhausted available 8 administrative remedies before he filed suit, even if prisoner fully exhausts while the suit is 9 pending). United States District Court For the Northern District of California 10 11 12 13 14 The Court has rendered its final decision on this matter; therefore, this Order TERMINATES Plaintiff's case. The Clerk of the Court shall close the file and terminate any pending motions. IT IS SO ORDERED. DATED: 5/13/11 SAUNDRA BROWN ARMSTRONG United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\SBA\CR.10\Beard3837.dismiss-UNEXH.wpd 3 1 2 3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ROBERT BEARD, Case Number: CV10-03837 SBA 4 5 6 7 Plaintiff, CERTIFICATE OF SERVICE v. HARRINGTON et al, Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / 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 May 16, 2011, 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. 13 14 16 Robert Beard H-95755 Salinas Valley State Prison P.O. Box 1020 Soledad, CA 93960 17 Dated: May 16, 2011 15 18 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\SBA\CR.10\Beard3837.dismiss-UNEXH.wpd 4

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