Wright v. Hartely, et al.
Filing
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ORDER To SHOW CAUSE Regarding Exhaustion (Doc. 1 ), signed by Magistrate Judge Gerald B. Cohn on 6/24/2011. Show Cause Response due by 7/29/2011. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TIME WRIGHT,
Case: No. 1:11-cv-01032-GBC (PC)
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ORDER TO SHOW CAUSE REGARDING
EXHAUSTION
Plaintiff,
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v.
(Doc. 1)
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JAMES D. HARTELY, et al.,
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Defendants.
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I.
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Tim Wright (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this
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civil rights action filed pursuant to 42 U.S.C. § 1983. On June 21, 2011, Plaintiff filed the original
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complaint. (Doc. 1). On the form complaint, Plaintiff concedes that he has not exhausted
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administrative remedies out of fear of potential retaliation. (Doc. 1 at 2).
Factual and Procedural Background
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II.
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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). Prisoners are required to exhaust the available
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administrative remedies prior to filing suit. Jones v. Bock, 127 S.Ct. 910, 918-19 (2007); McKinney
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v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). The Court must dismiss a case without
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prejudice even when there is exhaustion while the suit is pending. Lira v. Herrera, 427 F.3d 1164,
Exhaustion Requirement
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1170 (9th Cir. 2005).
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Exhaustion is required regardless of the relief sought by the prisoner. Booth v. Churner, 532
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U.S. 731, 741, 121 S.Ct. 1819 (2001). A prisoner “must use all steps the prison holds out, enabling
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the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009);
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see also Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). A prisoner’s concession to
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non-exhaustion is valid grounds for dismissal so long as no exception to exhaustion applies. 42
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U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).
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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, 126 S.Ct. 2378,
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2383 (2006); McKinney, 311 F.3d at 1199-1201. “[E]xhaustion is mandatory under the PLRA and
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. . . unexhausted claims cannot be brought in court.” Jones, 127 S.Ct. at 918-19 (citing Porter, 435
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U.S. at 524). “All ‘available’ remedies must now be exhausted; those remedies need not meet
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federal standards, nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524 (quoting
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Booth, 532 U.S. at 739 n.5). In this instance, Plaintiff conceded that he has not exhausted
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administrative remedies.
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III.
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Conclusion and Order
Because it is apparent that Plaintiff has not completed the grievance process, the Court
HEREBY ORDERS:
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Plaintiff SHALL SHOW CAUSE why the action should not be dismissed for
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failure to exhaust administrative remedies withing thirty (30) days of the date of
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service of this order.
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IT IS SO ORDERED.
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Dated:
0jh02o
June 24, 2011
UNITED STATES MAGISTRATE JUDGE
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