United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE
DISMISSED FOR FAILING TO EXHAUST ADMINISTRATIVE REMEDIES
(Doc. 1) 21-DAY DEADLINE
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE.
alleges that he exhausted available administrative remedies
on the claims he raises in this action. Plaintiff alleges
that though he gave an inmate appeal to prison staff 28 days
after the incident which is the basis for this action, it was
denied as untimely by the appeals office since they did not
receive it until 33 days after the incident. (Doc. 1, pp. 2,
6.) Plaintiff alleges that the prison-mailbox-rule applies
such that the filing of his inmate appeal was timely and
should not have been denied. (Id., p. 6.)
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, 127 S.Ct. 910 (2007); McKinney v. Carey, 311
F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required
regardless of the relief sought by the prisoner and
regardless of the relief offered by the process. Booth v.
Churner, 532 U.S. 731, 741 (2001). The exhaustion
requirement applies to all suits relating to prison life.
Porter v. Nussle, 435 U.S. 516 (2002). Exhaustion
under § 1997(e) is an affirmative defense,
Jones, at 216, most commonly raised by a defendant
in a motion for summary judgment under Rule 56 of the Federal
Rules of Civil Procdure, Albino v. Baca, 747 F.3d
1162, 1169-70 (9th Cir. 2014).
“the PLRA mandates early judicial screening of prisoner
complaints and requires prisoners to exhaust prison grievance
procedures before filing suit.” Jones, at 202.
Exhaustion is an issue of “judicial
administration” that is “appropriately decided
early in the proceeding.” Albino, at 1170
(citing Myers v. Bethlehem Shipbuilding Corp., 303
U.S. 41, 50-51 (1938) (referring to the “long-settled
rule of judicial administration that no one is entitled to
judicial relief for a supposed or threatened injury until the
prescribed administrative remedy has been exhausted”).
Where an issue exists as to whether a prisoner failure to
exhaust on the face of the complaint, it is properly
addressed at screening. Albino, at 1168-69.
checked the lines on the form complaint indicating that there
is a grievance procedure at the institution where this
incident occurred and that he presented the facts in his
complaint through all levels of review. (Doc. 1, p. 2.)
However, Plaintiff's notes under that section indicate
that his appeal, KVSO-0-15-02274, was denied at the second
level because it was received 33 days after the incident
complained of occurred. (Id., p. 6.) Plaintiff
alleges that he pursued the appeal to the third level where
it was denied at that level as well since not submitted
within 30 days of the incident. (Id.) Plaintiff
alleges that the prison-mailbox-rule applies to make his
inmate appeal timely submitted on the date he gave it to
prison personnel -- 28 days after the incident.
argues that his inmate appeal was timely based on a Wisconsin
District Court's ruling that extended the
prison-mailbox-rule to inmate appeals. (See Doc. 1,
p. 6 citing Georse v. Smith, 2006 WL 3751407, *5-6.)
However, the finding of the district court in Wisconsin is
not binding on this court and is factually distinguishable
from this case since the Wisconsin court found that the
10-day deadline or inmate appeals set by prison officials
there was “hardly generous” and justified
extension of the prison-mailbox-rule in that instance.
(Georse , at *7.
prison-mailbox-rule deems documents filed with the district
court on the date an inmate delivers a document to prison
authorities for forwarding. See Douglas v. Noelle,
567 F.3d 1103, 1107 (9th Cir. 2009) quoting Houston v.
Lack , 487 U.S. 266, 270 (1988) (“notice is deemed
filed on the date the prisoner ‘delivered the notice to
prison authorities for forwarding to the [d]istrict
[c]ourt'”). However, “proper exhaustion of
administrative remedies is necessary” and the
exhaustion requirement is not satisfied “by filing an
untimely or otherwise procedurally defective . . .
appeal.” Woodford v. Ngo, 548 U.S. 81, 83-84,
126 S.Ct. 2378 (2006). “Proper exhaustion demands
compliance with an agency's deadlines and other critical
procedural rules. . . .” Id. at 90. Under
California's applicable inmate appeal system, the
“[t]ime limits for reviewing appeals shall commence
upon the date of receipt of the appeal form by the appeals
coordinator.” 15 CCR § 3084.8(a). Plaintiff did
not cite any Ninth Circuit cases or cases from district
courts in this state that have applied the
prison-mailbox-rule to an inmate's appeals within
CDCR's grievance system and the Court found none. This
Court declines to make such a finding without precedent and
particularly where the applicable grievance deadline clearly
states that an inmate appeal is not filed until it is
received by the appeals coordinator. 15 CCR § 3084.8(a).
Moreover, the amount time provided by the grievance procedure
was sufficient, unlike in the Wisconsin case.
Plaintiff alleges that he pursued KVSO-0-15-02274 to the
Director's Level where it was denied since he did not
file it within the 30-day time limit. (Doc. 1, p. 6.)
However, Plaintiff does not state any process which was
available to him to appeal this denial. If he was informed
that he could appeal the denial of KVSO-0-15-02274 as
untimely, he must have done so and obtained leave to proceed
on KVSO-0-15-02274 before he may proceed here. However,
Plaintiff makes no such allegations. Thus, it appears
Plaintiff filed suit prematurely without first exhausting
available administrative remedies in compliance with section
1997e(a). Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th
Cir. 2003) (“A prisoner's concession to
nonexhaustion is a valid ground for dismissal. . . .”).
This is error is fatal to this action.
Plaintiff is ORDERED to show cause within 21
days from the date of service of this order why
this action should not be dismissed for failure to exhaust
administrative remedies prior to filing suit.
is forewarned that failure to timely respond to this order
will result in dismissal of this action for ...