(DLB) (PC) Delahoussaye v. Pear et al, No. 1:2007cv01296 - Document 7 (E.D. Cal. 2007)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be dismissed, without prejudice, signed by Judge Dennis L. Beck on 09/10/2007. Motion referred to Judge Lawrence J. O'Neill, Objections to F&R due by 10/15/2007. (Esteves, C)

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(DLB) (PC) Delahoussaye v. Pear et al Doc. 7 Case 1:07-cv-01296-LJO-NEW Document 7 Filed 09/11/2007 Page 1 of 2 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 BRADLEY DELAHOUSSAYE, 10 CASE NO. 1:07-cv-01296-LJO-NEW (DLB) PC Plaintiff, 11 v. 12 FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST D. PEAR, et al., (Doc. 1) 13 Defendants. OBJECTIONS DUE WITHIN THIRTY DAYS 14 / 15 Plaintiff Brad Delahoussaye (“plaintiff”) is a state prisoner proceeding pro se and in 16 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action 17 on September 5, 2007. 18 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 19 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 20 confined in any jail, prison, or other correctional facility until such administrative remedies as are 21 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners must complete the prison’s 22 administrative process, regardless of the relief sought by the prisoner and regardless of the relief 23 offered by the process, as long as the administrative process can provide some sort of relief on 24 the complaint stated. Booth v. Churner, 532 U.S. 731, 741 (2001). The section 1997e(a) 25 exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 26 U.S. 516, 532 (2002), and exhaustion must occur prior to filing suit, McKinney v. Carey, 311 27 F.3d 1198, 1199-1201 (9th Cir. 2002). 28 1 Dockets.Justia.com Case 1:07-cv-01296-LJO-NEW 1 Document 7 Filed 09/11/2007 Page 2 of 2 In his complaint, plaintiff alleges that his appeal was screened out at the Director’s Level 2 of review because it was filed late, and plaintiff includes the screening notice as evidence. 3 “[E]xhaustion is mandatory under the PLRA and . . . unexhausted claims cannot be brought in 4 court.” Jones v. Bock, 127 S.Ct. 910, 918-19 (2007) (citing Porter, 435 U.S. at 524). “Proper 5 exhaustion [, which] demands compliance with an agency’s deadlines and other critical 6 procedural rules . . . .” is required, Woodford v. Ngo, 126 S.Ct. 2378, 2386 (2006), and may not 7 be satisfied “by filing an untimely or otherwise procedurally defective . . . appeal,” id. at 2382. 8 In this instance, plaintiff’s appeal was screened out as untimely. This constitutes a failure to 9 exhaust. Id. Because is it clear from the face of plaintiff’s complaint that he did not exhaust 10 prior to filing suit, this action must be dismissed. 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 11 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid grounds 12 for dismissal . . . .”). Accordingly, it is HEREBY RECOMMENDED that this action be 13 dismissed, without prejudice, based on plaintiff’s failure to comply with 42 U.S.C. § 1997e(a) by 14 exhausting his claims prior to filing suit. 15 These Findings and Recommendations will be submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 17 thirty (30) days after being served with these Findings and Recommendations, plaintiff may file 18 written objections with the court. The document should be captioned “Objections to Magistrate 19 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 20 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 21 Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 24 IT IS SO ORDERED. Dated: 3b142a September 10, 2007 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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