January 6, 2014
RONALD LEE CANADA, Plaintiff,
J. BROWN, Correctional Officer, et al., Defendant.
ORDER OF DISMISSAL
THELTON E. HENDERSON, District Judge.
Plaintiff Ronald Lee Canada commenced this action when he filed a two-page letter with the Court on September 4, 2013, complaining of conditions at Pelican Bay State Prison (PBSP). Doc. #1. The Court cannot act on informal letters, documents, narratives, requests, etc. Consequently, on September 4, 2013, the Clerk notified Plaintiff that he had not attached a complaint to his pleadings and that he must do so in order for his action to proceed. On September 4, 2013, the Clerk also notified Plaintiff in writing that his action was deficient because he had neither paid the requisite $350.00 filing fee nor submitted a signed and completed court-approved in forma pauperis (IFP) application (Doc. #2). See 28 § U.S.C. 1915(a) (2). Plaintiff was advised that failure to file the requested items within twenty-eight (28) days would result in dismissal of the action. Doc. ## 1 & 2.
On October 7, 2013, Plaintiff filed a request for an extension of time and the Court granted Plaintiff an additional three weeks, to October 28, 2013, in which to file the required documents. Doc. ##3 & 4. The Court again mailed Plaintiff copies of the civil rights complaint form and IFP application. On November 12, 2013, Plaintiff filed a letter to the Court requesting additional time because PBSP procedures were making it difficult for him to obtain the certificate of funds (COF) documents he needed to complete his IFP application. Doc. #5. On November 15, 2015, Plaintiff filed another request for an extension of time because his administrative remedies against Defendants had not been fully exhausted. Doc. #6.
This case is dismissed for two reasons. First, although Plaintiff states that he has difficulty obtaining COF documents, he has not filed his claim on a civil rights complaint form, as he has been informed that he must do, nor has he filled out the financial part of the IFP application, which does not need input from prison officials. Second, Plaintiff's claim against Defendants is not exhausted. See Doc. #6.
"Ho 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). Exhaustion is mandatory and not left to the discretion of the district court. Woodford v. Ngo , 548 U.S. 81, 84 (2006). Because exhaustion under § 1597e(a) is an affirmative defense, a complaint may be dismissed for failure to exhaust only if failure to exhaust is obvious from the face of the complaint and/or any attached exhibits. Wyatt v. Terhune , 315 F.3d 1108, 1119-20 (9th Cir. 2003). The Court may dismiss a complaint for failure to exhaust where the prisoner "concedes to nonexhaustion" and "no exception to exhaustion applies." Id. at 1120.
Here, Plaintiff indicates in his request for an extension of time that his grievance has not completed PBSP's second and third levels of administrative review. Doc. #6. As it is clear that Plaintiff has not "properly exhausted" his claim by pursuing all levels of administrative review available to him before filing the instant action, and there is no applicable exception to the exhaustion requirement, dismissal without prejudice is appropriate on this ground also.
Therefore, this complaint is DISMISSED WITHOUT PREJUDICE for failure to file a complaint, an IFP application or pay the filing fee, and for failure to exhaust administrative remedies. Once Plaintiff has exhausted administrative remedies, he may refile this claim, but he must do so using a civil rights complaint form accompanied by a completed IFP application.
The Clerk shall terminate all pending motions as moot and close the file.
IT IS SO ORDERED.