Gonzalez v. Zika et al

Filing 8

ORDER OF DISMISSAL; DENYING 2 MOTION FOR PRELIMINARY INJUNCTION. Signed by Judge Claudia Wilken on 9/9/2011. (ndr, COURT STAFF) (Filed on 9/9/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ERIC L. GONZALEZ,

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No. C 11-01691 CW (PR)

Plaintiff,

ORDER OF DISMISSAL; DENYING
MOTION FOR PRELIMINARY
INJUNCTION

v.
BILL ZIKA, et al.,

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Defendants.

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Plaintiff, a state prisoner, has filed a pro se complaint

United States District Court
For the Northern District of California

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under 42 U.S.C. § 1983.

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forma pauperis under 28 U.S.C. § 1915.

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California's prison administrative process, however.

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Plaintiff states in his complaint that his administrative appeal is

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pending at the first formal level of review.

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He has been granted leave to proceed in
Plaintiff has not exhausted
Specifically,

(Compl. at 2:5-6.)

The Prison Litigation Reform Act of 1995 (PLRA) amended 42

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U.S.C. § 1997e to provide that "[n]o action shall be brought with

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respect to prison conditions under [42 U.S.C. § 1983], or any other

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Federal law, by a prisoner confined in any jail, prison, or other

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correctional facility until such administrative remedies as are

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available are exhausted."

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be dismissed by the court for failure to exhaust if a prisoner

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"conce[des] to nonexhaustion" and "no exception to exhaustion

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applies."

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exhausted his administrative remedies.

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must be DISMISSED without prejudice to refiling after exhausting

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California's prison administrative process.

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311 F.3d 1198, 1199-1201 (9th Cir. 2002) (action must be dismissed

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without prejudice unless prisoner exhausted available

Id. at 1120.

42 U.S.C. § 1997e(a).

A complaint may

Here, Plaintiff concedes he has not
Accordingly, the complaint

See McKinney v. Carey,

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administrative remedies before he filed suit, even if prisoner

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fully exhausts while suit is pending).

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complaint must be dismissed, Plaintiff’s motion for a preliminary

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injunction must be DENIED.

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Additionally, because the

The Clerk of the Court shall enter judgment in accordance with
this Order and close the file.

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This Order terminates Docket no. 2.

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IT IS SO ORDERED.

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Dated: 9/9/2011

CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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ERIC LAMONT GONZALEZ,
Case Number: CV11-01691 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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ERIC LAMONT GONZALEZ et al,
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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 September 9, 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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Eric L. Gonzalez E66196
Correctional Training Facility
P.O. Box 689
FW235 Low
Soledad, CA 93960-0689

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Dated: September 9, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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