Smith v. Mendes et al

Filing 7

ORDER OF DISMISSAL WITHOUT PREJUDICE. Signed by Magistrate Judge Kandis A. Westmore on 6/29/16. (Attachments: # 1 Certificate/Proof of Service)(sisS, COURT STAFF) (Filed on 6/29/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LAJAZZ A. SMITH, Case No. 16-cv-02746-KAW (PR) Plaintiff, 8 ORDER OF DISMISSAL WITHOUT PREJUDICE v. 9 10 MENDES, et al., Defendants. United States District Court Northern District of California 11 12 13 Plaintiff Lajazz Smith, a state prisoner incarcerated at Salinas Valley State Prison, has filed 14 a pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging the violation of her 15 constitutional rights by prison employees. Plaintiff has consented to the jurisdiction of the 16 undersigned United States Magistrate Judge over this action. Plaintiff has filed a motion for leave 17 to proceed in forma pauperis (“IFP”), which is granted in a separate order. For the reasons stated 18 below, the Court dismisses this action without prejudice. 19 DISCUSSION 20 Plaintiff alleges that prison employees are retaliating against her. In the complaint, 21 Plaintiff indicates that she did not complete the prison’s administrative appeal process because 22 “there a lot of staff and supervisors retaliating on me due to other pending suits civil [sic].” 23 The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide that 24 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 25 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 26 such administrative remedies as are available are exhausted.” Compliance with the exhaustion 27 requirement is mandatory. See Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532 28 U.S. 731, 739-40 & n.5 (2001). The administrative remedies need not meet federal standards, nor 1 2 need they be “plain, speedy and effective.” Porter, 534 U.S. at 524. Although nonexhaustion under Section 1997e(a) is an affirmative defense, a prisoner’s 3 concession to nonexhaustion is a valid ground for dismissal. See Wyatt v. Terhune, 315 F.3d 4 1108, 1119-20 (9th Cir. 2003) (prisoner’s concession to nonexhaustion is valid ground for 5 dismissal, as long as no exception to exhaustion applies), overruled on other grounds in Albino v. 6 Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). Accordingly, a claim may be dismissed without 7 prejudice if it is clear from the record that the prisoner concedes that he did not exhaust 8 administrative remedies. See id. The Ninth Circuit has interpreted Section 1997e(a) to mean that 9 an action must be dismissed unless the prisoner exhausted his available administrative remedies before he or she filed suit, even if the prisoner fully exhausts while the suit is pending. See 11 United States District Court Northern District of California 10 McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). 12 It is obvious from the face of Plaintiff’s complaint that she did not exhaust her 13 administrative remedies. She indicates that she did not use the administrative appeals process 14 because she is being retaliated against. However, this reason is insufficient to excuse 15 administrative exhaustion. Because Plaintiff did not exhaust her claims prior to filing this action, 16 this action will be dismissed without prejudice. Plaintiff may re-file these claims in a new case 17 once administrative appeals are exhausted. CONCLUSION 18 19 20 Based on the foregoing, this case is dismissed without prejudice. The Clerk shall enter a separate judgment and close the file. 21 IT IS SO ORDERED. 22 Dated: June 29, 2016 23 24 25 ______________________________________ KANDIS A. WESTMORE United States Magistrate Judge 26 27 28 2

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