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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RICKEY R. MADISON,

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Plaintiff,
v.
KEVIN CHAPPELL,
Defendant.

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No. C 13-4681 LHK (PR)
ORDER OF DISMISSAL

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Plaintiff, proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983,
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alleging that while housed in San Quentin State Prison, prison officials were deliberately
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indifferent to plaintiff’s serious medical needs. On March 24, 2014, the court reviewed
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plaintiff’s complaint and ordered him to show cause why this action should not be dismissed
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without prejudice for failure to exhaust administrative remedies. Plaintiff has not responded. As
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plaintiff has not shown that he exhausted his administrative remedies prior to filing suit, this
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action is dismissed without prejudice.
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DISCUSSION
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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
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prisoner confined in any jail, prison, or other correctional facility until such administrative
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remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and
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Order of Dismissal
P:\PRO-SE\LHK\CR.13\Madison681disexh.wpd

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no longer left to the discretion of the district court. Woodford v. Ngo, 126 S. Ct. 2378, 2382

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(2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). The PLRA exhaustion requirement

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requires “proper exhaustion” of available administrative remedies. Woodford, 126 S. Ct. at

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2387. 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

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

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

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

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Because exhaustion under Section 1997e(a) is an affirmative defense, a complaint may be

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dismissed for failure to exhaust only if failure to exhaust is obvious from the face of the

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complaint and/or any attached exhibits. Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.

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2003). The court may dismiss a complaint for failure to exhaust where the prisoner “conce[des]

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to nonexhaustion” and “no exception to exhaustion applies.” Id. at 1120.

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Here, it is obvious from the face of the complaint that plaintiff did not exhaust his

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administrative remedies and no exception to exhaustion is alleged or apparent in the complaint.

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Plaintiff concedes that he did not present his claims for review through the prison’s grievance

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procedure. Rather, he claims that waiting to go through the “regular appeal process” could cause

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serious and irreparable harm. (Compl. at 1-2.) Plaintiff admits that he did not pursue

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administrative relief at any level. (Id. at 1.) Because plaintiff did not exhaust his claims prior to

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filing this action, and plaintiff’s non-response to the order to show cause does not excuse his

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failure to exhaust, this action will be dismissed without prejudice.

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CONCLUSION
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. The clerk shall enter judgment, terminate any pending motions and close the file.

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IT IS SO ORDERED.
DATED:

4/16/14
LUCY H. KOH
United States District Judge

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Order of Dismissal
P:\PRO-SE\LHK\CR.13\Madison681disexh.wpd

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