(PC) Harper v. Spearman et al, No. 1:2009cv01492 - Document 10 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS recommending Dismissal of Action, Without Prejudice, for Failure to Exhaust signed by Magistrate Judge Gary S. Austin on 10/26/2009. Referred to Judge Anthony W. Ishii; Objections to F&R due by 11/30/2009. (Bradley, A)

Download PDF

(PC) Harper v. Spearman et al Doc. 10 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JASON SCOTT HARPER, 10 Plaintiff, 11 12 CASE NO. 1:09-cv-01492-AWI-GSA PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST v. M. SPEARMAN, et al., (Doc. 1) 13 Defendants. OBJECTIONS DUE WITHIN THIRTY DAYS 14 / 15 Plaintiff Jason Scott Harper, a state prisoner proceeding pro se and in forma pauperis, filed 16 this civil rights action pursuant to 42 U.S.C. § 1983 on August 25, 2009. In his complaint, Plaintiff 17 alleges that he filed a grievance concerning his claims in this action but concedes that the process 18 is not yet complete. (Doc. 1, § II.) Plaintiff alleges his grievance is still pending but asserts this is 19 an urgent matter. (Id.) 20 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 21 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 22 confined in any jail, prison, or other correctional facility until such administrative remedies as are 23 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 24 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 25 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required 26 regardless of the relief sought by the prisoner and regardless of the relief offered by the process, 27 /// 28 1 Dockets.Justia.com 1 Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies 2 to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002). 3 The California Department of Corrections and Rehabilitation has an administrative grievance 4 system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2009). The process is initiated 5 by submitting a CDCR Form 602. Id. at § 3084.2(a). Four levels of appeal are involved, including 6 the informal level, first formal level, second formal level, and third formal level, also known as the 7 “Director’s Level.” Id. at § 3084.5. Appeals must be submitted within fifteen working days of the 8 event being appealed, and the process is initiated by submission of the appeal to the informal level, 9 or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c). At the time Plaintiff 10 filed this suit, his appeal was pending at the second level of review. (Doc. 1, § II.) 11 In order to satisfy section 1997e(a), California state prisoners are required to use this process 12 to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86, 126 S.Ct. 2378 13 (2006); McKinney, 311 F.3d at 1199-1201. ““[E]xhaustion is mandatory under the PLRA and . . . 14 unexhausted claims cannot be brought in court.” Jones, 549 U.S. at 211 (citing Porter, 435 U.S. at 15 524). “All ‘available’ remedies must now be exhausted; those remedies need not meet federal 16 standards, nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524 (quoting Booth, 17 532 U.S. at 739 n.5). There is no exception to the exhaustion requirement for imminent harm or 18 other situational urgency. Because it is clear from the face of Plaintiff’s complaint that he filed suit 19 prior to exhausting, this action must be dismissed. 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 20 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid grounds for 21 dismissal . . . .”). 22 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, without 23 prejudice, based on Plaintiff’s failure to comply with 42 U.S.C. § 1997e(a) by exhausting his claims 24 prior to filing suit. 25 This Finding and Recommendation will be submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 27 days after being served with this Finding and Recommendation, Plaintiff may file written objections 28 with the Court. The document should be captioned “Objection to Magistrate Judge’s Finding and 2 1 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 2 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 6 IT IS SO ORDERED. Dated: 6i0kij October 26, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.