(PC)Martinez v. Schwarzenegger et al, No. 1:2014cv01393 - Document 16 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissing 8 Action for Failure to Exhaust Administrative Remedies; Objections Due Within Twenty-One Days signed by Magistrate Judge Stanley A. Boone on 12/5/2014. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 1/5/2015. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD LORENZO MARTINEZ, 12 Plaintiff, 13 Case No. 1:14-cv-01393-LJO-SAB FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES v. 14 ARNOLD SCHWARZENEGGER, et al., 15 Defendants. (ECF Nos. 10, 13) OBJECTIONS DUE WITHIN TWENTYONE DAYS 16 17 18 19 20 21 22 23 24 25 26 27 On October 30, 2014, Plaintiff Richard Lorenzo Martinez, a state prisoner, proceeding pro se filed a complaint. On October 30, 2014, Plaintiff filed an amended complaint which indicated that he had not exhausted his administrative remedies. On November 3, 2014, the undersigned issued an order to show cause why this action should not be dismissed for failure to exhaust administrative remedies. On November 25, 2014, Plaintiff filed a motion for an extension of time to respond to the order to show cause. In the motion, Plaintiff states that his appeal is at the third level of review and he seeks an additional thirty days to receive back the third level appeal response. Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as 28 1 1 are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is 2 required regardless of the relief sought by the prisoner. Booth v. Churner, 532 U.S. 731, 741 3 (2001). Proper exhaustion is required so “a prisoner must complete the administrative review 4 process in accordance with the applicable rules, including deadlines, as a precondition to 5 bringing suit in federal court.” Ngo v. Woodford, 539 F.3d 1108, 1109 (9th Cir. 2008) (quoting 6 Woodford v. Ngo, 126 S. Ct. 2378, 2384 (2006)). 7 The Court takes judicial notice of the fact that the California Department of Corrections 8 and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code 9 Regs., tit. 15 § 3084.1. The process is initiated by submitting a CDC Form 602. Id. at § 10 3084.2(a). Three levels of appeal are involved; the first level, second level, and third level. Id. 11 at §§ 3084.2, 3084.7. Appeals must be submitted within thirty calendar days of the event being 12 appealed, and the process is initiated by submission of the appeal to the appeals coordinator. Id. 13 at § 3084.8(b). Once the third level review is complete, the inmate has exhausted his 14 administrative remedies. Id. at § 3084.1(b) 15 In order to satisfy section 1997e(a), California state prisoners are required to use the 16 available process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81 17 (2006). “[E]xhaustion is mandatory under the PLRA and . . . unexhausted claims cannot be 18 brought in court.” Jones v. Bock, 127 S. Ct. 910, 918-19 (2007) (citing Porter v. Nussle, 435 19 U.S. 516, 524 (2002)). “All ‘available’ remedies must now be exhausted; those remedies need 20 not meet federal standards, nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 21 524 (quoting Booth, 532 U.S. at 739 n.5). 22 There is no exception to the exhaustion requirement for imminent harm. If the court 23 concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is 24 dismissal without prejudice, even where there has been exhaustion while the suit is pending. 25 Lira v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005). Because it is clear from the face of 26 Plaintiff’s complaint and his response to the order to show cause that he has not yet exhausted 27 the administrative grievance procedure, this action must be dismissed. 42 U.S.C. § 1997e(a); 28 Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to 2 1 nonexhaustion is a valid grounds for dismissal . . . .”). Plaintiff filed this action on September 8, 2014, prior to exhausting his administrative 2 3 remedies. Based on the foregoing, IT IS HEREBY RECOMMENDED that this action be 4 dismissed without prejudice for Plaintiff’s failure to exhaust administrative remedies. These findings and recommendations are submitted to the district judge assigned to this 5 6 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty7 one (21) days of service of this recommendation, Plaintiff may file written objections to these 8 findings and recommendations with the Court. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge will 10 review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 11 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may 12 result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911, 13 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 14 1394 (9th Cir. 1991)). 15 16 IT IS SO ORDERED. 17 Dated: December 5, 2014 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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