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KELLY v. LAMARQUE

United States District Court, Northern District of California


April 1, 2003

RICHARD W. KELLY, PLAINTIFF,
v.
ANTHONY A. LAMARQUE; ET AL., DEFENDANTS.

The opinion of the court was delivered by: Susan Illston, United States District Judge.

ORDER OF DISMISSAL

Richard W. Kelly, an inmate at Salinas Valley State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983, concerning a decision at the prison to ban two of his visitors from visiting him for a year for allegedly bringing marijuana onto prison grounds. His complaint is now before the court for review pursuant to 28 U.S.C. § 1915A, which requires the court to engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).

"No 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 are available are exhausted." 42 U.S.C. § 1997e(a). The State of California provides its prisoners and parolees the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." See Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. See id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). See id. at 1237-38.

Kelly's complaint discloses that he did not exhaust his administrative remedies before filing this action. He specifically alleges that he did not appeal to the highest level of administrative appeal available to him, stating that "time factors make all abstract in that no matter how much appeal time would elasp [sic], the parties would still be slandered and accused." Complaint, p. 2. Some relief is available in the California prison administrative grievance system. Kelly therefore must exhaust his administrative remedies before he may file a civil rights action in federal court. Although exhaustion of administrative remedies is an affirmative defense, "[a] prisoner's concession to nonexhaustion is a valid ground for dismissal, so long as no exception to exhaustion applies." Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). That is the case here: Kelly concedes that he did not exhaust his administrative remedies and there is no exception to the exhaustion rule for a prisoner who doesn't think the administrative appeals process would adequately help him.

Kelly also appears to be trying to allege claims on behalf of his visitors — i.e., that their reputations have been damaged by the prison official's decision. The visitors, not Kelly, must assert their own rights. Kelly cannot assert a claim for an injury to a third person. See Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962) ("a litigant appearing in propria persona has no authority to represent anyone other than himself").

This action is DISMISSED without prejudice to Kelly filing a new action after he exhausts the available administrative remedies. The in forma pauperis application is DENIED.

IT IS SO ORDERED.

JUDGMENT

This action is dismissed without prejudice to plaintiff filing a new action after he exhausts the available administrative remedies.

IT IS SO ORDERED AND ADJUDGED.

20030401

© 1992-2003 VersusLaw Inc.



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