United States District Court, N.D. California
September 6, 2005.
ORLANDO RODRIGUEZ, Plaintiff,
JEANNE WOODFORD; et al, Defendant.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER OF DISMISSAL
Plaintiff filed a pro se civil action on April 7, 2005. On
that date, the court notified plaintiff in writing that the
complaint was deficient due to the failure to pay the filing fee
or furnish a completed and signed court-approved in forma
pauperis application, including a completed certificate of funds
in the prisoner's account and a copy of the prisoner's trust
account statement for the last six months. Plaintiff was advised
that failure to pay the fee or file the completed application
within thirty days would result in dismissal of the action.
Plaintiff has failed to provide the court with either the filing
fee or a complete in forma pauperis application and the
deadline by which to do so has passed. Specifically, the in
forma pauperis application he did file is not accompanied by the
required certificate of funds in the prisoner's account or an
inmate trust account statement for the last six months. The in
forma pauperis application is DENIED (Docket # 3). This action
is DISMISSED without prejudice for failure to pay the filing fee
or submit a complete in forma pauperis application. Plaintiff
may file a new action, but should include a filing fee or an in forma pauperis application
with a new civil rights complaint to commence that new action.
Because this action is now dismissed, plaintiff should not file
an in forma pauperis application or pay the filing fee in this
The court notes that plaintiff alleges in his complaint that he
does not need to exhaust administrative remedies because he is
seeking only money damages. That is incorrect. Exhaustion of all
"available" remedies is mandatory. Porter v. Nussel,
534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 739-40 & n. 5
(2001). Even when the prisoner seeks relief not available in
grievance proceedings, notably money damages, exhaustion is a
prerequisite to suit. Id. at 741. A prisoner "seeking only
money damages must complete a prison administrative process that
could provide some sort of relief on the complaint stated, but no
money." Id. at 739. 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). If
Rodriguez conceded that he did not exhaust his administrative
remedies before filing this action, such a concession would
provide an independent basis for dismissal of this action. See
Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003)
("prisoner's concession to nonexhaustion is a valid ground for
dismissal, so long as no exception to exhaustion applies").
The clerk shall close the file.
IT IS SO ORDERED.
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