Shavers v. Warden of New Folsom Prison et al
Filing
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ORDER signed by District Judge Otis D. Wright, II on 11/18/11 re 33 USCA Order, ORDERING that the court finds that the present appeal lacks merit and therefore the court REVOKES Plaintiff's in forma pauperis status (cc: USCA). (Benson, A.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JESSE LEE SHAVERS, JR.,
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Plaintiff,
vs.
No. 2:07-CV-00123 ODW
Ninth Circuit No. 11-17696
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COUNSELOR YOUNG,
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Defendant.
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__________________________________
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ORDER REVOKING IN FORMA PAUPERIS STATUS
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.
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§ 1983 and in the district court requested leave to proceed in forma pauperis pursuant to 28 U.S.C.
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§ 1915. On April 8, 2008 that request was granted [ 9] Plaintiff renews that request in connection
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with his appeal.
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Defendants moved to Dismiss on the basis of Plaintiff’s failure to exhaust administrative
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remedies. That motion was granted. Plaintiff did not dispute the fact that he failed to exhaust his
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remedies administratively.
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professionally with Defendant’s attorney.” (Opp. To Mtn to Dismiss, p. 4). To the extent Plaintiff
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argued that his attempt to “resolve this matter professionally with Defendant’s attorney” was the
Instead, he asserted that he attempted to “‘resolve this matter
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functional equivalent of an administrative appeal process in place through the CDCR, this court was
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not persuaded.
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In support of his motion to dismiss, Defendant Young attached as an exhibit a print out of
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the administrative appeals plaintiff has filed in the past. The record reflects no fewer than eleven
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(11) appeals, from which he court drew the conclusion that Plaintiff is familiar with the process.
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However, there was no record of an appeal for the instant matter of which plaintiff complains herein.
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The court found that Plaintiff had failed to exhaust his non-judicial remedies, thus rendering his
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amended complaint susceptible to an unenumerated 12(b) Motion to Dismiss. See Wyatt v. Terhune
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(9th Cir. 2003) 315 F.3d 1108-1119.
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Under the Prison Litigation Reform Act, (“PLRA”) an inmate with a claim that department
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decision, action, condition or policy, which in his or her opinion adversely affects his or her welfare
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is required, within 15 working days of the event or decision which gives rise to the claim, to exhaust
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his remedies through the California Department of Corrections and Rehabilitation (CDCR) appeals
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process prior to bringing suit. The requirement is mandatory. (See 42 USC §§ 3084c and 1997e(a).)
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Having failed to avail himself of the appeal procedures in place at CDCR this court was required
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to dismiss this action.
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The court finds that the present appeal lacks merit and therefore the court revokes Plaintiff’s
in forma pauperis status.
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DATED:
November 18, 2011
_____________________________
OTIS D. WRIGHT, II, DISTRICT JUDGE
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