(PC) Succaw v. Marsh, et al., No. 1:2012cv01197 - Document 14 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS Recommending to Dismiss Action, Without Prejudice, for Plaintiff's Concession of Failure to Exhaust Administrative Remedies, signed by Magistrate Judge Gerald B. Cohn on 11/6/2012, referred to Judge Ishii. Objections to F&R Due Within 21 Days. (Marrujo, C)
Download PDF
<![CDATA[
(PC) Succaw v. Marsh, et al. Doc. 14 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CHRISTOPHER SUCCAW, 10 Plaintiff, 11 12 v. T. MARSH, et al., 13 Defendants. 14 CASE NO. 1:12-cv-01197-AWI-GBC (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING TO DISMISS ACTION, WITHOUT PREJUDICE, FOR PLAINTIFF’S CONCESSION OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES Docs. 9, 13 / OBJECTIONS DUE WITHIN 21 DAYS 15 16 I. Introduction 17 On July 23, 2012, Plaintiff Christopher Succaw (“Plaintiff”), a state prisoner proceeding pro 18 se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On 19 August 23, 2012, Plaintiff filed an amended complaint, conceding non-exhaustion, and stating that 20 he filed his complaint prematurely because the Chief of Inmate Appeals did not respond with sixty 21 (60) days. See Am. Compl. at 1, Doc. 9. Plaintiff states that subsequent to the filing of the complaint, 22 on July 31, 2012, the Chief of Inmate Appeals issued a decision at the third level of review. Id. at 23 2, 5-6. 24 On September 18, 2012, the undersigned issued an Order to Show Cause as to why this 25 action should not be dismissed, without prejudice, for Plaintiff’s concession of failure to exhaust 26 administrative remedies. Doc. 13. Plaintiff did not submit a response to the order to show cause. 27 // 28 // Page 1 of 4 Dockets.Justia.com 1 II. Failure to Exhaust Administrative Remedies 2 A. Legal Standard 3 Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be 4 brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 5 prisoner confined in any jail, prison, or other correctional facility until such administrative remedies 6 as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is 7 therefore mandatory, and no longer left to the discretion of the district court. Woodford v. Ngo, 548 8 U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). The PLRA’s exhaustion 9 requirement requires “proper exhaustion” of administrative remedies. Ngo, 548 U.S. at 93. This 10 means “[p]risoners must now exhaust all ‘available’ remedies,” id. at 85, in “compliance with an 11 agency’s deadlines and other critical procedural rules.” Id. at 90–91. The requirement cannot be 12 satisfied “by filing an untimely or otherwise procedurally defective administrative grievance or 13 appeal.” Id. Further, the remedies “available” need not meet federal standards, nor need they be 14 “plain, speedy and effective.” Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth, 532 U.S. at 739-40 15 & n.5. 16 It is the prison’s requirements, and not the PLRA, that define the boundaries of proper 17 exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007). The California Department of Corrections and 18 Rehabilitation (“CDCR”) provides inmates the right to file administrative appeals alleging 19 misconduct by correctional officers or “any departmental decision, action, condition, or policy which 20 they can demonstrate as having an adverse effect upon their welfare.” See Cal. Code Regs. tit. 15, 21 §§ 3084.1(a) & (e). In order to exhaust all available administrative remedies within this system, a 22 prisoner must submit his complaint as an inmate appeal on a 602 form, within fifteen1 working days 23 from the date the administrative decision or action being complained of, and proceed through several 24 levels of appeal: (1) informal level grievance filed directly with any correctional staff member; (2) 25 first formal level appeal filed with one of the institution’s appeal coordinators; (3) second formal 26 level appeal filed with the institution head or designee; and (4) third formal level appeal filed with 27 28 1 As of July 2011, inmates have thirty calendar days to file appeals. § 3084.8(b). Page 2 of 4 1 the CDCR director or designee. Id. at §§ 3084.5 & 3084.6(c); Brodheim v. Cry, 584 F.3d 1262, 2 1264–65 (9th Cir. 2009); Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). See Ngo v. 3 Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008) (Ngo II) (finding claims unexhausted where filed 4 more than fifteen working days after deadline). 5 A prisoner’s concession to non-exhaustion is valid grounds for dismissal so long as no 6 exception to exhaustion applies. 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th 7 Cir. 2003). The Court may review exhibits attached to the complaint that may contradict Plaintiff’s 8 assertions in the complaint. Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir. 2000); Durning v. First 9 Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). In deciding . . . failure to exhaust administrative 10 remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 11 F.3d at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative 12 remedies, the proper remedy is dismissal without prejudice. Id. 13 B. Analysis 14 A prisoner’s concession to non-exhaustion is valid grounds for dismissal so long as no 15 exception to exhaustion applies. 42 U.S.C. § 1997e(a); Wyatt, 315 F.3d at 1120. As stated above, 16 in Plaintiff’s amended complaint, he concedes non-exhaustion, stating that he filed his complaint 17 prematurely because the Chief of Inmate Appeals did not respond with sixty (60) days. See Am. 18 Compl. at 1, Doc. 9. Plaintiff states that subsequent to the filing of the complaint, on July 31, 2012, 19 the Chief of Inmate Appeals issued a decision at the third level of review. Id. at 2, 5-6. Thus, 20 Plaintiff conceded non-exhaustion prior to filing this action. “[A] district court must dismiss a case 21 without prejudice ‘when there is no pre-suit exhaustion,’ even if there is exhaustion while suit is 22 pending.” Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005), cert. denied, 549 U.S. 1204 (2007) 23 (quoting McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (per curiam)). 24 In Ngo, the Supreme Court held that “full and proper exhaustion of administrative remedies 25 is necessary, which means using all steps that the agency holds out, and doing so properly (so that 26 the agency addresses the issues on the merits).” See Ngo, 548 U.S. 81, 84, 90, 94. “Proper exhaustion 27 demands compliance with an agency’s deadlines and other critical procedural rules because no 28 adjudicative system can function effectively without imposing some orderly structure on the course Page 3 of 4 1 of its proceedings.” Id. at 91, 103. While the Supreme Court recognized that this may be harsh and 2 will prevent certain prisoner cases from proceeding, the “centerpiece of the PLRA’s effort to reduce 3 the quantity . . . of prisoner suits is an ‘invigorated’ exhaustion provision, § 1997e(a).” Id. at 84 & 4 103. “Exhaustion is no longer left to the discretion of the district court, but is mandatory.” Id. at 85. 5 Plaintiff concedes that he failed to exhaust all his mandatory administrative remedies against 6 defendants prior to initiating this action, which requires mandatory dismissal, in accordance with § 7 1997e(a) and Ngo. 8 III. Conclusion and Recommendation 9 Based on the foregoing, it is HEREBY RECOMMENDED that: 10 1. 11 This action is DISMISSED, without prejudice, for Plaintiff’s concession of failure to exhaust administrative remedies, pursuant to 42 U.S.C. § 1997e(a); 12 2. All pending motions are MOOT for review; and 13 3. The Clerk of the Court is directed to close the case. 14 These Findings and Recommendations will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 16 days after being served with these Findings and Recommendations, Plaintiff may file written 17 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 19 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 20 1153, 1156-57 (9th Cir. 1991). 21 IT IS SO ORDERED. 22 23 Dated: 7j8cce November 6, 2012 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 Page 4 of 4
]]>
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.
