Love v. Yates et al
Filing
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ORDER to SHOW CAUSE Why Action Should Not be Dismissed For Failure to Exhaust Administrative Remedies, Thirty-Day Deadline, signed by Magistrate Judge Sandra M. Snyder on 6/1/2011. Show Cause Response due by 7/5/2011. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CARL R. LOVE,
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Plaintiff,
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CASE NO. 1:10-cv-02304-SMS PC
ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED FOR FAILURE
TO EXHAUST ADMINISTRATIVE REMEDIES
v.
JAMES A YATES, et al.,
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(ECF No. 1)
Defendants.
THIRTY-DAY DEADLINE
/
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I.
Screening Requirement
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Plaintiff Carl R. Love (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint in this action
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on December 10, 2010. (ECF No. 1.) On May 26, 2011, Plaintiff filed a motion for leave to amend
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the complaint because he has now received the director’s level appeal response. (ECF No. 15.)
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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In determining whether a complaint states a claim, the Court looks to the pleading standard
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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and
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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it
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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
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Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555
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(2007)).
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Under section 1983, Plaintiff must demonstrate that each defendant personally participated
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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires
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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct.
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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that]
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pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line
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between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting
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Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations
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contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129
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S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555).
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II.
Complaint Allegations
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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and
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is incarcerated at Avenal State Prison. Plaintiff alleges that, while housed at Pleasant Valley State
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Prison, he was transported to a medical appointment and his hands were restrained by the use of a
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black box. The box was placed on his wrists in an awkward position causing his hand to swell and
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become numb for two to four hours. Plaintiff states that he sent his administrative appeal to the third
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level on October 19, 2010, and it is due back on January 19, 2011. (Compl. 2, ECF No. 1.) Plaintiff
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filed a motion for leave to amend his complaint, stating that when he filed his complaint he had not
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exhausted his administrative remedies. (Motion for Leave to Amend 1, ECF No. 15.) Since he filed
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his complaint, he has fully exhausted administrative remedies. (Id. at 2.)
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III.
Discussion
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Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with
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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 of administrative remedies is required
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regardless of the relief sought by the prisoner. Booth v. Churner, 532 U.S. 731, 741 (2001). Proper
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exhaustion is required so “a prisoner must complete the administrative review process in accordance
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with the applicable rules, including deadlines, as a precondition to bringing suit in federal court.”
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Ngo v. Woodford, 539 F.3d 1108, 1109 (9th Cir. 2008) (quoting Woodford v. Ngo, 126 S. Ct. 2378,
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2384 (2006)).
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The Court takes judicial notice of the fact that the California Department of Corrections and
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Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit.
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15 § 3084.1 (2008). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a).
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Four levels of appeal are involved, including the informal level, first formal level, second formal
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level, and third formal level, also known as the “Director’s Level.” Id. at § 3084.5. Appeals must
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be submitted within fifteen working days of the event being appealed, and the process is initiated by
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submission of the appeal to the informal level, or in some circumstances, the first formal level. Id.
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at §§ 3084.5, 3084.6(c).
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In order to satisfy section 1997e(a), California state prisoners are required to use the available
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process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81 (2006).
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“[E]xhaustion is mandatory under the PLRA and . . . unexhausted claims cannot be brought in court.”
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Jones v. Bock, 127 S. Ct. 910, 918-19 (2007) (citing Porter v. Nussle, 435 U.S. 516, 524 (2002)).
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“All ‘available’ remedies must now be exhausted; those remedies need not meet federal standards,
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nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524 (quoting Booth, 532 U.S.
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at 739 n.5). There is no exception to the exhaustion requirement for imminent harm. If the court
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concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is
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dismissal without prejudice, even where there has been exhaustion while the suit is pending. Lira,
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427 F.3d at 1171. Because it is clear from the face of Plaintiff’s complaint that he has not yet
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exhausted the administrative grievance procedure, this action must be dismissed. 42 U.S.C. §
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1997e(a); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to
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nonexhaustion is a valid grounds for dismissal . . . .”); see also Davis v. Pineda, 347 Fed.Appx. 343
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(9th Cir. 2009) (unpublished).
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IV.
Conclusion and Order
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Accordingly it is HEREBY ORDERED that Plaintiff show cause why this action should not
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be dismissed for failure to exhaust administrative remedies within thirty (30) days of the date of
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service of this order. Failure to follow this order will result in the action being dismissed, without
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prejudice, for failure to comply with the order of the Court.
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IT IS SO ORDERED.
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Dated:
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June 1, 2011
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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