FINDINGS AND RECOMMENDATIONS RECOMMENDING TO DISMISS ACTION,
WITHOUT PREJUDICE, FOR PLAINTIFF'S CONCESSION OF FAILURE TO EXHAUST
Docs. 9, 13
OBJECTIONS DUE WITHIN 21 DAYS
On July 23, 2012, Plaintiff Christopher Succaw ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On August 23, 2012, Plaintiff filed an amended complaint, conceding non-exhaustion, and stating that he filed his complaint prematurely because the Chief of Inmate Appeals did not respond with sixty (60) days. See Am. Compl. at 1, Doc. 9. Plaintiff states that subsequent to the filing of the complaint, on July 31, 2012, the Chief of Inmate Appeals issued a decision at the third level of review. Id. at 2, 5-6.
On September 18, 2012, the undersigned issued an Order to Show Cause as to why this action should not be dismissed, without prejudice, for Plaintiff's concession of failure to exhaust administrative remedies. Doc. 13. Plaintiff did not submit a response to the order to show cause.
II. Failure to Exhaust Administrative Remedies
Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[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). The PLRA's exhaustion requirement is therefore mandatory, and no longer left to the discretion of the district court. Woodford v. Ngo, 548 U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). The PLRA's exhaustion requirement requires "proper exhaustion" of administrative remedies. Ngo, 548 U.S. at 93. This means "[p]risoners must now exhaust all 'available' remedies," id. at 85, in "compliance with an agency's deadlines and other critical procedural rules." Id. at 90--91. The requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. Further, the remedies "available" need not meet federal standards, nor need they be "plain, speedy and effective." Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth, 532 U.S. at 739-40 & n.5.
It is the prison's requirements, and not the PLRA, that define the
boundaries of proper exhaustion. Jones v. Bock, 549 U.S. 199, 218
(2007). The California Department of Corrections and Rehabilitation
("CDCR") provides inmates the right to file administrative appeals
alleging misconduct by correctional officers or "any departmental
decision, action, condition, or policy which they can demonstrate as
having an adverse effect upon their welfare." See Cal. Code Regs. tit.
15, §§ 3084.1(a) & (e). In order to exhaust all available
administrative remedies within this system, a prisoner must submit his
complaint as an inmate appeal on a 602 form, within fifteen*fn1
working days from the date the administrative decision or
action being complained of, and proceed through several levels of
appeal: (1) informal level grievance filed directly with any
correctional staff member; (2) first formal level appeal filed with
one of the institution's appeal coordinators; (3) second formal level
appeal filed with the institution head or designee; and (4) third
formal level appeal filed with
the CDCR director or designee. Id. at §§ 3084.5 & 3084.6(c); Brodheim
v. Cry, 584 F.3d 1262, 1264--65 (9th Cir. 2009); Barry v. Ratelle, 985
F. Supp. 1235, 1237 (S.D. Cal. 1997). See Ngo v. Woodford, 539 F.3d
1108, 1110 (9th Cir. 2008) (Ngo II) (finding claims unexhausted where
filed more than fifteen working days after deadline).
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 may review exhibits attached to the complaint that may contradict Plaintiff's assertions in the complaint. Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir. 2000); Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). In deciding . . . failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
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, 315 F.3d at 1120. As stated above, in Plaintiff's amended complaint, he concedes non-exhaustion, stating that he filed his complaint prematurely because the Chief of Inmate Appeals did not respond with sixty (60) days. See Am. Compl. at 1, Doc. 9. Plaintiff states that subsequent to the filing of the complaint, on July 31, 2012, the Chief of Inmate Appeals issued a decision at the third level of review. Id. at 2, 5-6.Thus, Plaintiff conceded non-exhaustion prior to filing this action. "[A] district court must dismiss a case without prejudice 'when there is no pre-suit exhaustion,' even if there is exhaustion while suit is pending." Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005), cert. denied, 549 U.S. 1204 (2007) (quoting McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (per curiam)).
In Ngo, the Supreme Court held that "full and proper exhaustion of administrative remedies is necessary, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." See Ngo, 548 U.S. 81, 84, 90, 94. "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 91, 103. While the Supreme Court recognized that this may be harsh and will prevent certain prisoner cases from proceeding, the "centerpiece of the PLRA's effort to reduce the quantity . . . of prisoner suits is an 'invigorated' exhaustion provision, § 1997e(a)." Id. at 84 & 103. "Exhaustion is no longer left to the discretion of the district court, but is mandatory." Id. at 85. Plaintiff concedes that he failed to exhaust all his mandatory administrative remedies against defendants prior to initiating this action, which requires mandatory dismissal, in accordance with § 1997e(a) and Ngo.
III. Conclusion and Recommendation
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. This action is DISMISSED, without prejudice, for Plaintiff's concession of failure to exhaust administrative remedies, ...