FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CASE WITHOUT PREJUDICE DUE TO FAILURE TO EXHAUST, SEC. 1915(g) AND RULE 11(b)(3) VIOLATION
Horace Bell ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. On December 20, 2010, Plaintiff filed his original complaint. On January 3, 2011, the Court issued an order to show cause as to why this action should not be dismissed due to Plaintiff's apparent failure to exhaust administrative remedies, violation of rule 11(b)(3) of the Federal Rules of Civil Procedure and accumulation of three strikes under 28 U.S.C. § 1915(g). (Doc. 4). On January 14, 2011, and February 22, 2011, Plaintiff filed responses to the order to show cause. (Docs. 10, 11).
I. Exhaustion Requirement
On page two of the form complaint, Plaintiff alleges that there is a grievance procedure available at his institution, but that the grievance process is not completed due to delay in processing the appeals. (Doc. 1, at p. 2). 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 are available are exhausted." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211-12 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). The Court must dismiss a case without prejudice even when there is exhaustion while the suit is pending. Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005).
Exhaustion is required regardless of the relief sought by the prisoner. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001). A prisoner must "must use all steps the prison holds out, enabling the prison to reach the merits of the issue." Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009); see also Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). A prisoner's concession to non-exhaustion is valid grounds for dismissal so long as no exception to exhaustion applies. 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).
The Court takes judicial notice of the fact that the California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2008). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Id. at § 3084.5. Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c).
In order to satisfy section 1997e(a), California state prisoners are required to use the available process to exhaust their claims prior to filing suit. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002); see also Woodford v. Ngo, 548 U.S. 81, 85 (2006). "[E]xhaustion is mandatory under the PLRA and . . . unexhausted claims cannot be brought in court." Jones, 549 U.S. at 211 (citing Porter v. Nussle, 534 U.S. 516, 524). Plaintiff states in his complaint that he has not exhausted administrative remedies because of "delay in processing by health care appeals." However, "[a]ll 'available' remedies must . . . be exhausted; those remedies need not meet federal standards, nor must they be 'plain, speedy, and effective.'" Porter, 534 U.S. at 524 (quoting Booth v. Churner, 532 U.S. 731, 739 n.5); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). In response to the order to show cause, Plaintiff asserts that "all of Plaintiff's efforts proved futile." (Doc. 11). Among his attached documents, Plaintiff submits a response from the health care appeals coordinator dated December 16, 2010, which states that Plaintiff's original administrative appeal was still being reviewed. (Doc. 11, at p. 9). Plaintiff has not exhausted his administrative remedies prior to filing this suit, nor has Plaintiff demonstrated that he falls within any exception to the exhaustion requirement. See, e.g., Sapp v. Kimbrell, 623 F.3d 813, 827 (citing Woodford v. Ngo, 548 U.S. 81, 126). Therefore, the Court recommends dismissing this action without prejudice due to Plaintiff's failure to exhaust his administrative remedies.
Section 1915 of Title 28 of the United States Code governs proceedings in forma pauperis. Section 1915(g) provides that:
[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Determining whether Plaintiff's actions and appeals count as strikes under section 1915(g) requires the Court to conduct a "careful examination of the order dismissing an action, and other relevant information," to determine if, in fact, "the action was dismissed because it was frivolous, malicious or failed to state a claim." Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).*fn1
A review of the record of actions and appeals filed by Plaintiff in the United States District Court and in the Ninth Circuit reveals that Plaintiff filed three or more actions or appeals that were dismissed as frivolous, malicious or for failing to state a claim upon which relief may be granted. The Court takes judicial notice that Plaintiff has two prior actions dismissed under Heck v. Humphrey, 512 U.S. 477 (1994) for not stating a cognizable claim under section 1983. Those cases are: Bell v. Harrington, et al., 2:09-cv-08808-UA-RC (PC) (C.D. Cal.) (dismissed December 30, 2009, for failure to state a claim under Heck) (strike one) and Bell v. Harrington, et al., 2:10-cv-00421-UA-RC (PC) (C.D. Cal.) (dismissed February 24, 2010, for failure to state a claim under Heck) (strike 2). The Court finds that a dismissal pursuant to Heck counts as a strike under 28 U.S.C. § 1915(g). The Supreme Court in Heck stated its ruling was based on a denial of "the existence of a cause of action." Heck, 512 U.S. at 489. Additionally, several other courts have held that dismissals under Heck count as strikes under 28 U.S.C. § 1915(g). See e.g., Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) ("A § 1983 claim which falls under the rule in Heck is legally frivolous."); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) ("[I]n light of Heck, the complaint was properly dismissed for failure to state a claim.").
Moreover, a prisoner's claims are considered frivolous if it "merely repeats pending or previously litigated claims." See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (quoting Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.1988)). Therefore, the Court finds that Bell v. Harrington, 2:10-cv-00421, was merely duplicative of Bell v. Harrington, 2:09-cv-08808, which was dismissed for failure to state a claim and thus the action is also frivolous. See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). In response to the Court's order to show cause, Plaintiff confuses the issue presented and argues that this current case is not duplicative, when the Court observed that Bell v. Harrington, et al., 2:10-cv-00421, was duplicative. Additionally, Plaintiff's argument does not address the Court's finding that Bell v. Harrington, 2:10-cv-00421 counts as a strike for failure to state a claim under Heck.
Generally, a dismissal for failure to prosecute does not fall within the plain language of Section 1915(g). However, a court is to carefully evaluate the substance of the dismissal and where the merits of the claim have been determined to be frivolous or malicious, it counts as a strike. See Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005); see also O'Neal v. Price, 531 F.3d 1146, 1152-53 (9th Cir. 2008) (interpreting the term "dismissed" under section 1915(g) to include when a trial court denies request to file an action without prepayment of the filing fee on the ground that complaint if frivolous and then subsequently terminates the complaint). Moreover, section 1915(e)(2) requires appellate courts to dismiss all frivolous appeals. 28 U.S.C. 1915(e)(2); see also O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008); Thompson v. Drug Enforcement Admin., 492 F.3d 428, 436 (D.C. Cir. 2007).
The Court finds that the following appellate cases: Bell v. Flippo, et al., No. 10-15186 (9th Cir. 2010) (dismissed June 2, 2010) (strike 3) and Bell v. Shapiro, et al., No. 10-55278 (9th Cir. 2010) (dismissed July 13, 2010) (strike 4), were frivolous appeals and they count as strikes under Section 1915(g). In an order dated April 16, 2010, the appellate court in Flippo denied Plaintiff's motion to proceed in forma pauperis due to finding the appeal frivolous. On June 2, 2010, Plaintiff's appeal was dismissed for failure to prosecute. Similarly in Shapiro, the appellate court found in its order dated June 12, 2010, that the appeal was frivolous and consequently denied Plaintiff's motion to proceed in forma ...