(PC) Harris v. Roscelli et al, No. 1:2011cv01912 - Document 20 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED Without Prejudice for Failure to Exhaust Administrative Remedies re 9 First Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Gerald B. Cohn on 11/9/2012. Referred to Judge O'Neill. Objections to F&R due within fifteen (15) days. (Jessen, A)
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(PC) Harris v. Roscelli et al Doc. 20 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 WILLIE L. HARRIS, 11-cv-01912-LJO-GBC (PC) 10 FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES Plaintiff, 11 v. 12 J. ROSCELLI, et al., (Doc. 1; Doc. 9) 13 FIFTEEN DAY DEADLINE 14 Defendants. / 15 16 I. 17 Willie L. Harris (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action filed pursuant to 42 U.S.C. § 1983. On November 17, 2011, Plaintiff filed his 19 original complaint. Doc. 1. On page two of the form complaint, Plaintiff states that he has not 20 completed exhaustion of administrative remedies due to the fact that it is still pending. Doc. 1 at 2. 21 On April 18, 2012, Plaintiff filed an amended complaint in which he indicates that he has finally 22 exhausted administrative remedies and that he administrative appeal was denied at the final level. 23 Doc. 9 at 2. On September 18, 2012, the Court issued an order to show cause which gave Plaintiff 24 thirty days to respond as to why the action should not be dismissed for failure to exhaust 25 administrative remedies. Doc. 19. Plaintiff has failed to file a timely response to the order to show 26 cause. 27 /// 28 /// Factual and Procedural Background 1 Dockets.Justia.com 1 II. 2 Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with 3 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 4 confined in any jail, prison, or other correctional facility until such administrative remedies as are 5 available are exhausted." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 6 administrative remedies prior to filing suit. Jones v. Bock, 127 S.Ct. 910, 918-19 (2007); McKinney 7 v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). The Court must dismiss a case without 8 prejudice even when there is exhaustion while the suit is pending. Lira v. Herrera, 427 F.3d 1164, 9 1170 (9th Cir. 2005). Exhaustion Requirement 10 Exhaustion is required regardless of the relief sought by the prisoner. Booth v. Churner, 532 11 U.S. 731, 741, 121 S.Ct. 1819 (2001). A prisoner must “must use all steps the prison holds out, 12 enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 13 2009); see also Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). A prisoner’s concession to 14 non-exhaustion is valid grounds for dismissal so long as no exception to exhaustion applies. 42 15 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). 16 The Court takes judicial notice of the fact that the California Department of Corrections and 17 Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 18 15 § 3084.1 (2011). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2. Three 19 levels of appeal are involved, including the first formal level, second formal level, and third formal 20 level, also known as the "Director's Level." Id. at § 3084.7. Appeals must be submitted within thirty 21 calendar days of the event being appealed, and the process is initiated by submission of the appeal 22 to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.8. 23 In order to satisfy section 1997e(a), California state prisoners are required to use the available 24 process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 25 2383 (2006); McKinney, 311 F.3d at 1199-1201. “[E]xhaustion is mandatory under the PLRA and 26 . . . unexhausted claims cannot be brought in court.” Jones, 127 S.Ct. at 918-19 (citing Porter, 435 27 U.S. at 524). “All ‘available’ remedies must now be exhausted; those remedies need not meet 28 federal standards, nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524 (quoting 2 1 Booth, 532 U.S. at 739 n.5). 2 It is clear that Plaintiff prematurely filed this action prior to the exhaustion of his 3 administrative remedies. The Court must dismiss a case without prejudice even when there is 4 exhaustion while the suit is pending. Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005). Because 5 it is clear from the face of Plaintiff’s complaint that he has not yet exhausted, this action should be 6 dismissed. 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A 7 prisoner’s concession to nonexhaustion is a valid grounds for dismissal . . . .”). 8 III. 9 10 Conclusion and Recommendation Based on the foregoing, the Court HEREBY RECOMMENDS: That this action be dismissed without prejudice for failure to exhaust administrative remedies. 11 12 These findings and recommendations will be submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 14 fifteen (15) days after being served with these findings and recommendations, Plaintiff may file 15 written objections with the Court. The document should be captioned “Objections to Magistrate 16 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 17 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 18 Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 IT IS SO ORDERED. 21 22 Dated: 0jh02o November 9, 2012 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 3
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