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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LAJAZZ A. SMITH,

Case No. 16-cv-02746-KAW (PR)

Plaintiff,
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ORDER OF DISMISSAL WITHOUT
PREJUDICE

v.
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MENDES, et al.,
Defendants.

United States District Court
Northern District of California

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Plaintiff Lajazz Smith, a state prisoner incarcerated at Salinas Valley State Prison, has filed

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a pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging the violation of her

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constitutional rights by prison employees. Plaintiff has consented to the jurisdiction of the

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undersigned United States Magistrate Judge over this action. Plaintiff has filed a motion for leave

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to proceed in forma pauperis (“IFP”), which is granted in a separate order. For the reasons stated

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below, the Court dismisses this action without prejudice.

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DISCUSSION

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Plaintiff alleges that prison employees are retaliating against her. In the complaint,

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Plaintiff indicates that she did not complete the prison’s administrative appeal process because

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“there a lot of staff and supervisors retaliating on me due to other pending suits civil [sic].”

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The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide that

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“[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

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such administrative remedies as are available are exhausted.” Compliance with the exhaustion

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requirement is mandatory. See Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532

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U.S. 731, 739-40 & n.5 (2001). The administrative remedies need not meet federal standards, nor

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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

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concession to nonexhaustion is a valid ground for dismissal. See Wyatt v. Terhune, 315 F.3d

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1108, 1119-20 (9th Cir. 2003) (prisoner’s concession to nonexhaustion is valid ground for

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dismissal, as long as no exception to exhaustion applies), overruled on other grounds in Albino v.

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Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). Accordingly, a claim may be dismissed without

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prejudice if it is clear from the record that the prisoner concedes that he did not exhaust

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administrative remedies. See id. The Ninth Circuit has interpreted Section 1997e(a) to mean that

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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

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United States District Court
Northern District of California

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McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).

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It is obvious from the face of Plaintiff’s complaint that she did not exhaust her

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administrative remedies. She indicates that she did not use the administrative appeals process

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because she is being retaliated against. However, this reason is insufficient to excuse

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administrative exhaustion. Because Plaintiff did not exhaust her claims prior to filing this action,

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this action will be dismissed without prejudice. Plaintiff may re-file these claims in a new case

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once administrative appeals are exhausted.
CONCLUSION

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Based on the foregoing, this case is dismissed without prejudice. The Clerk shall enter a
separate judgment and close the file.

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IT IS SO ORDERED.
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Dated: June 29, 2016
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______________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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