In re Deborah Belcher

Filing 5

ORDER DISMISSING CASE WITHOUT PREJUDICE, ***Civil Case Terminated. Signed by Judge Yvonne Gonzalez Rogers on 6/8/12. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 6/8/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 In re DEBORAH BELCHER, No. C 12-02144 YGR (PR) 4 ORDER OF DISMISSAL 5 6 / 7 8 9 United States District Court For the Northern District of California 10 11 Plaintiff Deborah Belcher, a state prisoner, filed a document which was opened as a pro se action under 42 U.S.C. § 1983. 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 12 that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 13 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 14 administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Although once 15 within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now 16 mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). All available remedies must now be 17 exhausted; those remedies "need not meet federal standards, nor must they be 'plain, speedy, and 18 effective.'" Id. (citation omitted). Even when the prisoner seeks relief not available in grievance 19 proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.; Booth v. Churner, 20 532 U.S. 731, 741 (2001). Similarly, exhaustion is a prerequisite to all prisoner suits about prison 21 life, whether they involve general circumstances or particular episodes, and whether they allege 22 excessive force or some other wrong. Porter, 534 U.S. at 532. PLRA's exhaustion requirement 23 requires "proper exhaustion" of available administrative remedies. Woodford v. Ngo, 548 U.S. 81, 24 94 (2006). 25 departmental decision, action, condition or policy perceived by those individuals as adversely 26 affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). It also provides them the right to file 27 appeals alleging misconduct by correctional officers/officials. Id. § 3084.1(e). In order to exhaust 28 available administrative remedies within this system, a prisoner must proceed through several levels The State of California provides its prisoners the right to appeal administratively "any 1 of appeal: (1) informal resolution; (2) formal written appeal on a CDC 602 inmate appeal form; 2 (3) second level appeal to the institution head or designee; and (4) third level appeal to the Director 3 of the California Department of Corrections and Rehabilitation. Barry v. Ratelle, 985 F. Supp. 1235, 4 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's 5 level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38. 6 Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by 7 defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). 8 Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). However, a complaint may be dismissed by 9 the court for failure to exhaust if a prisoner "conce[des] to nonexhaustion" and "no exception to United States District Court For the Northern District of California 10 exhaustion applies." Id. at 1120. Here, Plaintiff concedes she has not exhausted her administrative 11 remedies. In a letter filed on May 24, 2012, Plaintiff claims that she has "not yet received back [her] 12 responce [sic] to [her] CDCR 3rd level 602 appeal." (Pl.'s May 24, 21012 Letter at 1.) Plaintiff has 13 not presented any extraordinary circumstances which might compel that she be excused from 14 complying with PLRA's exhaustion requirement. Cf. Booth, 532 U.S. at 741 n.6 (courts should not 15 read "futility or other exceptions" into § 1997e(a)). 16 Accordingly, the complaint is DISMISSED without prejudice to refiling after exhausting 17 California's prison administrative process. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th 18 Cir. 2002) (action must be dismissed without prejudice unless prisoner exhausted available 19 administrative remedies before he filed suit, even if prisoner fully exhausts while the suit is 20 pending). 21 22 23 24 25 The Clerk of the Court shall enter judgment, terminate any pending motions, and close the file. IT IS SO ORDERED. DATED: June 8, 2012 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 26 27 28 G:\PRO-SE\YGR\CR.12\Belcher2144.DISM(unexh).wpd 2

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