UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 4, 2008
JERRY L. ARMSTRONG, PLAINTIFF,
L. E. SCRIBNER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING MOTION FOR RELIEF [doc. #56]
On July 10, 2008, the Court adopted in part the Report and Recommendation of the magistrate judge.*fn1 [doc. # 53.] Judgment was entered on that same date. The Judgment noted that defendants' motion to dismiss the first amended complaint and to strike plaintiff's request for punitive damages were granted with prejudice. [doc. #54.]
Plaintiff filed a "Rule 60(a) motion for relief from clerical mistake or error" on July 25, 2008. Federal Rule of Civil Procedure 60(a) provides that: "[t]he court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record." Rather than the correction of a clerical mistake, plaintiff seeks clarification of "whether Plaintiff's cause of action against defendant Ryan is denied with prejudice, for failure to exhaust; or  whether Plaintiff's claim is dismissed 'without prejudice' for failure to exhaust." (Plaintiff's motion at 4.) As previously noted, the Court dismissed plaintiff's amended complaint with prejudice.
To clarify for plaintiff, his first claim against Warden Ryan was dismissed with prejudice for failure to exhaust administrative remedies. Before the Supreme Court decision in Woodford v. Ngo, 126 S.Ct. 2378 (2006), Ninth Circuit law directed the district court to dismiss a complaint without prejudice to allow the prisoner a chance to exhaust his administrative remedies. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) ("If the district court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice."). But Woodford forecloses any untimely exhaustion. The exhaustion requirement may not be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Woodford, 126 S.Ct. at 2382. Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules. Id. at 2386. Other district courts within the Ninth Circuit have suggested that it is inappropriate for the district court to dismiss the Complaint with leave to amend if it is too late to exhaust. See Janoe v. Garcia, 2007 WL 1110914, at *8-9 (S.D. Cal. March 29, 2007) (dismissing Complaint with prejudice where a prisoner did not pursue the three-step formal review process, and had no time to exhaust); see also Regan v. Frank, 2007 WL 106537, at *4-5 (D. Haw. Jan.9, 2007) (dismissing plaintiff's claims with prejudice for failure to timely exhaust administrative remedies as required under 42 U.S.C. § 1997e(a) prior to filing suit). California administrative appeals process requires that prisoner administrative appeals be submitted within fifteen days of receiving an adverse determination. Armstrong admittedly did not exhaust his administrative remedies, and under Woodford , it is impossible for plaintiff to cure this defect. Therefore, the Court's dismissal based upon failure to exhaust was with prejudice as set forth in the Court's Order adopting the Report and Recommendation and the Judgment.
Accordingly, plaintiff's Rule 60(a) motion is DENIED.
IT IS SO ORDERED.