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Richard O. Brandford v. Kvsp-Delano

May 31, 2012

RICHARD O. BRANDFORD,
PLAINTIFF,
v.
KVSP-DELANO, DEFENDANT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (Doc. 1)

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983.*fn1 Pending before the Court is Plaintiff's complaint filed on May 30, 2012. (Doc. 1) For the reasons set forth below, the Court recommends that the matter be DISMISSED WITHOUT PREJUDICE.

I. Screening Requirement

Whenever a prisoner seeks redress from a governmental entity or officer, the Court is obligated to screen the complaint and dismiss it or any portion thereof, if the Court determines the action or appeal is "frivolous, malicious or fails to state a claim on which relief may be granted; or . . . seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. 1915(e)(2). A claim is frivolous "when the facts alleged arise to the level of the irrational or the wholly incredible . . ." 2

Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). 3

II. Plaintiff has failed to exhaust his administrative remedies under the PLRA

In his complaint, Plaintiff alleges that he has, several times, requested the law librarian provide 5 him with certain legal materials that he needs for his ongoing habeas corpus proceeding in state court. 6

(Doc. 1 at 2) Plaintiff seems to assert that he was not provided the materials in a timely fashion. Id. at 7

2-3. When he sought an interview about the situation, the law librarian replied that he was not the 8 only inmate requesting materials and that the law librarian receives 150 such requests each week. Id. 9 at 6, 7)

Plaintiff admits that he not exhausted his administrative remedies. (Doc. 1 at 1) He seeks an order of the Court, apparently, to excuse him from compliance with the standard grievance procedure. Id. Plaintiff states, "I, Richard O. Bradford #P-84053 a **fn2 (Prisoner) seeking relief from KVSP-Delano . . . submit[s] a *(Emergency) Motion of Grievance Outside of *(normal) appeal process to Title XV, CCR *(Standard) appeal procedure within the Department of Corrections here at KVSP-Delano where *(Petitioner) is housed." Id. at 1-2.

A. Discussion

The Prison Litigation Reform Act requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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). Exhaustion is a prerequisite to the inmate filing a lawsuit. See Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 739 (2001). The PLRA requires the inmate to exhaust every level in the administrative process. See McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). If the Court concludes that the prisoner has failed to exhaust his administrative remedies, the proper remedy is dismissal without prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1119-1120 (9th Cir. 2003).

The goals of the PLRA's exhaustion requirement are to: (1) "eliminate unwarranted federal 2 court interference with the administration of prisons;" (2) "afford corrections officials time and 3 opportunity to address complaints internally before allowing the initiation of a federal case;" and, (3) 4 "reduce the quantity and improve the quality of prisoner suits." Woodford v. Ngo, 548 U.S. 81, 84-85 5 (2006). Therefore, "the PLRA exhaustion requirement requires full and proper exhaustion." Id. at 92-6 94. 7

The grievance and appeal procedure for inmates in the custody of the California Department of Corrections and Rehabilitation, is a four-step process. Vaden v. Summerhill, 449 F.3d 1047, 1048-9 1049 (9th Cir. 2006); Cal. Code Regs. tit. 15, §§ 3084.1-3084.6. Generally, the inmate is required to file an informal inmate appeal within 15 days of the incident. Brown v. Valoff, 422 F.3d 926, 929-930 (9th Cir. Cal. 2005). If denied at this First Level, the inmate can appeal to the Second Level which, ...


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