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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ROBERT BEARD,

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No. C 10-03837 SBA (PR)
ORDER OF DISMISSAL

Plaintiff,

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v.
WARDEN HARRINGTON,

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Defendant.

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United States District Court
For the Northern District of California

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The following background is taken from the Court's February 1, 2011 Order:

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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."

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(Feb. 1, 2011 Order at 1.) Therefore, the Court ordered, inter alia, as follows:
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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).

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(Id. at 1-2.)
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On February 10, 2011, Plaintiff filed a notice of his continued intent to prosecute as well as a
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document entitled, "Complaint Demand for Jury Trial."
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The Court now reviews Plaintiff's original complaint and his "Complaint Demand for Jury
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Trial," and it finds that Plaintiff has not exhausted California's prison administrative process.
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The Prison Litigation Reform Act of 1995 (PLRA) amended 42 U.S.C. § 1997e to provide
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that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any
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other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such
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administrative 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 § 1997e(a) is now

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mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). All available remedies must now be

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exhausted; those remedies "need not meet federal standards, nor must they be 'plain, speedy, and

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effective.'" Id. (citation omitted). Even when the prisoner seeks relief not available in grievance

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proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.; Booth v. Churner,

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532 U.S. 731, 741 (2001). Similarly, exhaustion is a prerequisite to all prisoner suits about prison

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life, whether they involve general circumstances or particular episodes, and whether they allege

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excessive force or 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. Ngo, 548 U.S. 81,

United States District Court
For the Northern District of California

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94 (2006).

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The State of California provides its prisoners the right to appeal administratively "any

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departmental decision, action, condition or policy perceived by those individuals as adversely

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affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). It also provides them the right to file

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appeals alleging misconduct by correctional officers/officials. Id. § 3084.1(e). In order to exhaust

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available administrative remedies within this system, a prisoner must proceed through several levels

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of appeal: (1) informal resolution; (2) formal written appeal on a CDC 602 inmate appeal form;

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(3) second level appeal to the institution head or designee; and (4) third level appeal to the Director

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of the California Department of Corrections and Rehabilitation. Barry v. Ratelle, 985 F. Supp. 1235,

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1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's

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level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38.

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Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by

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defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b).

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Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). However, a complaint may be dismissed by

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the court for failure to exhaust if a prisoner "conce[des] to nonexhaustion" and "no exception to

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exhaustion applies." Id. at 1120. Here, Plaintiff concedes he has not exhausted his administrative

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remedies. In his original complaint, under the heading "Exhaustion of Administrative Remedies," he

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was asked "Is the process completed?" and he answered "No." (Compl. at 2.) He adds that he has

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"been waiting for a response from the appeals coordinator." (Id.) Plaintiff has not presented any

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extraordinary circumstances which might compel that he be excused from complying with PLRA's

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exhaustion requirement. 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 after exhausting

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California's prison administrative process. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th

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Cir. 2002) (action must be dismissed without prejudice unless prisoner exhausted available

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administrative remedies before he filed suit, even if prisoner fully exhausts while the suit is

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pending).

United States District Court
For the Northern District of California

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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

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
ROBERT BEARD,
Case Number: CV10-03837 SBA

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Plaintiff,
CERTIFICATE OF SERVICE
v.
HARRINGTON et al,
Defendant.

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United States District Court
For the Northern District of California

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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.

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Robert Beard H-95755
Salinas Valley State Prison
P.O. Box 1020
Soledad, CA 93960

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Dated: May 16, 2011

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Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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