Madison v. Chappell

Filing 11

ORDER OF DISMISSAL. Signed by Judge Lucy H. Koh on 4/16/14. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 4/17/2014)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 RICKEY R. MADISON, 12 13 14 15 Plaintiff, v. KEVIN CHAPPELL, Defendant. ) ) ) ) ) ) ) ) ) ) No. C 13-4681 LHK (PR) ORDER OF DISMISSAL 16 Plaintiff, proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983, 17 alleging that while housed in San Quentin State Prison, prison officials were deliberately 18 indifferent to plaintiff’s serious medical needs. On March 24, 2014, the court reviewed 19 plaintiff’s complaint and ordered him to show cause why this action should not be dismissed 20 without prejudice for failure to exhaust administrative remedies. Plaintiff has not responded. As 21 plaintiff has not shown that he exhausted his administrative remedies prior to filing suit, this 22 action is dismissed without prejudice. 23 DISCUSSION 24 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought 25 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 26 prisoner confined in any jail, prison, or other correctional facility until such administrative 27 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and 28 Order of Dismissal P:\PRO-SE\LHK\CR.13\Madison681disexh.wpd 1 no longer left to the discretion of the district court. Woodford v. Ngo, 126 S. Ct. 2378, 2382 2 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). The PLRA exhaustion requirement 3 requires “proper exhaustion” of available administrative remedies. Woodford, 126 S. Ct. at 4 2387. The plain language of the PLRA requires that prior to filing suit, all “administrative 5 remedies available [must be] exhausted.” 42 U.S.C. § 1997e(a). The Ninth Circuit has 6 interpreted 1997e(a) to mean that an action must be dismissed unless the prisoner exhausted his 7 available administrative remedies before he or she filed suit, even if the prisoner fully exhausts 8 while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). 9 Because exhaustion under Section 1997e(a) is an affirmative defense, a complaint may be 10 dismissed for failure to exhaust only if failure to exhaust is obvious from the face of the 11 complaint and/or any attached exhibits. Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 12 2003). The court may dismiss a complaint for failure to exhaust where the prisoner “conce[des] 13 to nonexhaustion” and “no exception to exhaustion applies.” Id. at 1120. 14 Here, it is obvious from the face of the complaint that plaintiff did not exhaust his 15 administrative remedies and no exception to exhaustion is alleged or apparent in the complaint. 16 Plaintiff concedes that he did not present his claims for review through the prison’s grievance 17 procedure. Rather, he claims that waiting to go through the “regular appeal process” could cause 18 serious and irreparable harm. (Compl. at 1-2.) Plaintiff admits that he did not pursue 19 administrative relief at any level. (Id. at 1.) Because plaintiff did not exhaust his claims prior to 20 filing this action, and plaintiff’s non-response to the order to show cause does not excuse his 21 failure to exhaust, this action will be dismissed without prejudice. 22 23 CONCLUSION The instant action is DISMISSED without prejudice to filing a new complaint in a new 24 case containing claims that have been exhausted through California’s prison administrative 25 process. The clerk shall enter judgment, terminate any pending motions and close the file. 26 27 IT IS SO ORDERED. DATED: 4/16/14 LUCY H. KOH United States District Judge 28 Order of Dismissal P:\PRO-SE\LHK\CR.13\Madison681disexh.wpd 2

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