Vera v. Gipson et.al.

Filing 20

ORDER OF DISMISSAL. For the foregoing reasons, this action is hereby DISMISSED, without prejudice to Plaintiff's refiling his claims after all available administrative remedies have been exhausted. Signed by Judge Edward J. Davila on 10/16/2013. (ecg, COURT STAFF) (Filed on 10/17/2013)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT
9

FOR THE NORTHERN DISTRICT OF CALIFORNIA
10
11

No. C 13-02146 EJD (PR)

)
)
)
Plaintiff,
)
)
v.
)
)
)
CONNIE GIPSON, et al.,
)
)
Defendants.
_________________________________ )
GUILLERMO VERA,

12
13
14
15
16

ORDER OF DISMISSAL

17
18

Plaintiff, a California inmate at the Corcoran State Prison (“CSP”), filed the instant

19

civil rights action in pro se pursuant to 42 U.S.C. § 1983 against CSP officials. For the

20

reasons discussed below, this case is DISMISSED without prejudice for failure to exhaust

21

administrative remedies.

22

DISCUSSION

23
24

The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321

25

(1996) (“PLRA”) provides: “No action shall be brought with respect to prison conditions

26

under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail,

27

prison, or other correctional facility until such administrative remedies as are available

28

are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and not left to the
Order of Dismissal
G:\PRO-SE\EJD\CR.13\02146Vera_dism-exh.wpd

1

1

discretion of the district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006). Exhaustion is

2

a prerequisite to all prisoner lawsuits concerning prison life, whether such actions involve

3

general conditions or particular episodes, whether they allege excessive force or some

4

other wrong, and even if they seek relief not available in grievance proceedings, such as

5

money damages. Porter v. Nussle, 534 U.S. 516, 524 (2002). All available remedies

6

must be exhausted; those remedies “need not meet federal standards, nor must they be

7

‘plain, speedy, and effective.’” Id. (citation omitted). Even when the prisoner seeks relief

8

not available in grievance proceedings, notably money damages, exhaustion is a

9

prerequisite to suit. Id.; Booth v. Churner, 532 U.S. 731, 741 (2001). Prisoners cannot

10

avoid the administrative exhaustion requirement by requesting relief not available in the

11

appeals system, such as monetary relief, or by simply declaring the process futile. The

12

exhaustion requirement requires “proper exhaustion” of all available administrative

13

remedies. Ngo, 548 U.S. at 93. Because exhaustion under § 1997e(a) is an affirmative

14

defense, a complaint may be dismissed for failure to exhaust only if failure to exhaust is

15

obvious from the face of the complaint and/or any attached exhibits. Wyatt v. Terhune,

16

315 F.3d 1108, 1119-20 (9th Cir. 2003). The Court may dismiss a complaint for failure

17

to exhaust where the prisoner “conce[des] to nonexhaustion” and “no exception to

18

exhaustion applies.” Id. at 1120.

19

Here, Plaintiff indicated on the complaint that his grievance is “pending” at the

20

third formal level of appeal. (Compl. at 2.) Plaintiff also failed to indicate whether the

21

last level to which he appealed was the highest level of appeal available. (Id.) Plaintiff

22

must comply with the PLRA’s requirement of “proper exhaustion” under Ngo: “Proper

23

exhaustion demands compliance with an agency’s deadlines and other critical procedural

24

rules because no adjudicative system can function effectively without imposing some

25

orderly structure on the course of its proceedings.” 548 U.S. at 90-91 (footnote omitted).

26

As it is clear that Plaintiff has not “properly exhausted” his claims by pursuing all levels

27

of administrative review available to him before filing the instant action, and there is no

28

applicable exception to the exhaustion requirement, dismissal without prejudice is
Order of Dismissal
G:\PRO-SE\EJD\CR.13\02146Vera_dism-exh.wpd

2

1
2

appropriate.
The Court notes that the Plaintiff writes most of his complaint in Spanish. In the

3

future, Plaintiff is advised that all pleadings must be written in English in order for this

4

Court to properly adjudicate any matters.

5

CONCLUSION

6
7

For the foregoing reasons, this action is hereby DISMISSED, without prejudice to

8

Plaintiff’s refiling his claims after all available administrative remedies have been

9

exhausted.

10
11

DATED:

10/16/2013

EDWARD J. DAVILA
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Order of Dismissal
G:\PRO-SE\EJD\CR.13\02146Vera_dism-exh.wpd

3

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

GUILLERMO VERA,

Case Number: CV13-02146 EJD

Plaintiff,

CERTIFICATE OF SERVICE

v.
CONNIE GIPSON, et al.,
Defendants.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
10/17/2013
That on
, I SERVED a true and correct copy(ies) of the
attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s)
hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into
an inter-office delivery receptacle located in the Clerk's office.

Guillermo Vera K-73387
Corcoran State Prison
P. O. Box 3476
Corcoran, CA 93212
Dated:

10/17/2013
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk