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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GREGORY L. FLETCHER,

Case No. 16-cv-04423-YGR (PR)

Plaintiff,
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ORDER OF DISMISSAL WITHOUT
PREJUDICE

v.
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DOCTOR ERQUIZA,
Defendant.

United States District Court
Northern District of California

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42

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U.S.C. § 1983. On January 11, 2017, the Court reviewed Plaintiff’s complaint and ordered him to

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show cause why this action should not be dismissed without prejudice for failure to exhaust

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administrative remedies. Dkt. 7. Plaintiff’s response to the Court’s Order was due on February 8,

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2017. That deadline has passed, and Plaintiff has not filed a response. As Plaintiff has not shown

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that he exhausted his administrative remedies prior to filing suit, this action will be dismissed

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without prejudice.

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DISCUSSION
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought

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with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner

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confined in any jail, prison, or other correctional facility until such administrative remedies as are

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available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and no longer left to the

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discretion of the district court. Ross v. Blake, 136 S. Ct. 1850, 1856-58 (2016); Woodford v. Ngo,

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548 U.S. 81, 84 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). “Prisoners must now

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exhaust all ‘available’ remedies, not just those that meet federal standards.” Id. at 85. Even when

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the relief sought cannot be granted by the administrative process, i.e., monetary damages, a

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prisoner must still exhaust administrative remedies. Id. at 85-86 (citing Booth, 532 U.S. at 734).

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The plain language of the PLRA requires that prior to filing suit, all “administrative

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remedies available [must be] exhausted.” 42 U.S.C. § 1997e(a). The Ninth Circuit has interpreted

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1997e(a) to mean that an action must be dismissed unless the prisoner exhausted his available

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administrative remedies before he or she filed suit, even if the prisoner fully exhausts while the

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

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In his original complaint, Plaintiff conceded that he had not exhausted his administrative

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remedies. Dkt. 4 at 2.1 Furthermore, Plaintiff has not presented any extraordinary circumstances

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which might compel that he be excused from complying with PLRA’s exhaustion requirement.

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Cf. Booth, 532 U.S. at 741 n.6 (courts should not read “futility or other exceptions” into section

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1997e(a)).

United States District Court
Northern District of California

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Unfortunately for Plaintiff, he has not satisfied the exhaustion requirement under

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McKinney. Plaintiff’s complaint indicates that he had not exhausted his claims prior to filing this

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action, and he has failed to respond to the Court’s order to show cause by addressing his failure to

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exhaust. Therefore, the complaint is DISMISSED without prejudice.
CONCLUSION

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The instant action is DISMISSED without prejudice to filing a new complaint in a new

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case containing claims that have been exhausted through California’s prison administrative

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process.

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The Clerk of the Court shall terminate any pending motions and close the file.

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IT IS SO ORDERED.

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Dated: February 17, 2017
______________________________________
YVONNE GONZALEZ ROGERS
United States District Judge

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Page number citations refer to those assigned by the Court’s electronic case management
filing system and not those assigned by Plaintiff.
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