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. Pending before the Court is Plaintiff's complaint filed on October 9, 2012. (Doc. 1) For the reasons set forth below, the Court recommends that the matter be DISMISSED WITHOUT PREJUDICE.
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 . . . " Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).
II. Plaintiff has failed to exhaust his administrative remedies under the PLRA
Plaintiff is housed at Avenal State Prison. (Doc. 1 at 1) In his
complaint, Plaintiff alleges that
he has complained to various doctors and custodial staff members
that he had COPD and that due to the poor air quality in Avenal,
California, he wants to be transferred to a different facility. Id. at
He alleges that he first brought this to the attention of custodial staff on July 22, 2012. Id. at 3.
He then raised this issue with Dr. Enomoto on August 2, 2012 and explained that his counselor refused to place him on the transfer list. Id. at 3-4. He then discussed the issue with doctors, including Dr.
Sprague, on August 15, 2012. Id. at 4. In response, Dr. Sprague prescribed Plaintiff a new inhaler.
Id. On August 21, 2012, Plaintiff was transported to Mercy Hospital in Bakersfield for breathing testing. Id. at 4. Finally, Plaintiff filed this action on October 9, 2012. (Doc. 1)
Plaintiff admits that he did not file a grievance related to the failed attempt to obtain a transfer. Id. at 2. He explains that his is an "exceptional case," such that the administrative remedy is "inadequate" and "an attempt to obtain administrative remedies would be futile." Id. He clarifies that his concern is that delay would result in irreparable harm. Id.
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 court interference with the administration of prisons;" (2) "afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case;" and, (3) "reduce the quantity and improve the quality of prisoner suits." Woodford v. Ngo, 548 U.S. 81, 84-85 ...