Fletcher v. Erquiza

Filing 8

ORDER DISMISSING CASE WITHOUT PREJUDICE. Signed by Judge Yvonne Gonzalez Rogers on 2/17/17. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 2/17/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GREGORY L. FLETCHER, Case No. 16-cv-04423-YGR (PR) Plaintiff, 8 ORDER OF DISMISSAL WITHOUT PREJUDICE v. 9 10 DOCTOR ERQUIZA, Defendant. United States District Court Northern District of California 11 12 Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 13 U.S.C. § 1983. On January 11, 2017, the Court reviewed Plaintiff’s complaint and ordered him to 14 show cause why this action should not be dismissed without prejudice for failure to exhaust 15 administrative remedies. Dkt. 7. Plaintiff’s response to the Court’s Order was due on February 8, 16 2017. That deadline has passed, and Plaintiff has not filed a response. As Plaintiff has not shown 17 that he exhausted his administrative remedies prior to filing suit, this action will be dismissed 18 without prejudice. 19 20 DISCUSSION The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought 21 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 22 confined in any jail, prison, or other correctional facility until such administrative remedies as are 23 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and no longer left to the 24 discretion of the district court. Ross v. Blake, 136 S. Ct. 1850, 1856-58 (2016); Woodford v. Ngo, 25 548 U.S. 81, 84 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). “Prisoners must now 26 exhaust all ‘available’ remedies, not just those that meet federal standards.” Id. at 85. Even when 27 the relief sought cannot be granted by the administrative process, i.e., monetary damages, a 28 prisoner must still exhaust administrative remedies. Id. at 85-86 (citing Booth, 532 U.S. at 734). 1 The plain language of the PLRA requires that prior to filing suit, all “administrative 2 remedies available [must be] exhausted.” 42 U.S.C. § 1997e(a). The Ninth Circuit has interpreted 3 1997e(a) to mean that an action must be dismissed unless the prisoner exhausted his available 4 administrative remedies before he or she filed suit, even if the prisoner fully exhausts while the 5 suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). 6 In his original complaint, Plaintiff conceded that he had not exhausted his administrative 7 remedies. Dkt. 4 at 2.1 Furthermore, Plaintiff has not presented any extraordinary circumstances 8 which might compel that he be excused from complying with PLRA’s exhaustion requirement. 9 Cf. Booth, 532 U.S. at 741 n.6 (courts should not read “futility or other exceptions” into section 10 1997e(a)). United States District Court Northern District of California 11 Unfortunately for Plaintiff, he has not satisfied the exhaustion requirement under 12 McKinney. Plaintiff’s complaint indicates that he had not exhausted his claims prior to filing this 13 action, and he has failed to respond to the Court’s order to show cause by addressing his failure to 14 exhaust. Therefore, the complaint is DISMISSED without prejudice. CONCLUSION 15 16 The instant action is DISMISSED without prejudice to filing a new complaint in a new 17 case containing claims that have been exhausted through California’s prison administrative 18 process. 19 The Clerk of the Court shall terminate any pending motions and close the file. 20 IT IS SO ORDERED. 21 Dated: February 17, 2017 ______________________________________ YVONNE GONZALEZ ROGERS United States District Judge 22 23 24 25 26 27 1 28 Page number citations refer to those assigned by the Court’s electronic case management filing system and not those assigned by Plaintiff. 2

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