United States District Court, N.D. California
ORDER DENYING MOTION FOR RECONSIDERATION
GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE
a state prisoner, filed a pro se civil rights
complaint pursuant to 42 U.S.C. § 1983.
October 14, 2016, the Court issued an Order of Dismissal with
Leave to Amend. Dkt. 4. Specifically, the Court pointed out
that “[a] question which must be answered before
Plaintiff can proceed with his claims is whether he has
exhausted available administrative remedies with respect to
each claim.” Id. at 2. The Court further
explained as follows:
The Prison Litigation Reform Act of 1995, Pub. L. No.
104-134, 110 Stat. 1321 (1996) (PLRA), amended 42 U.S.C.
§ 1997e to provide that “[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). Under this
section, an action must be dismissed unless the prisoner
exhausted his available administrative remedies before he
filed suit, even if the prisoner fully exhausts while the
suit is pending. See McKinney v. Carey, 311 F.3d
1198, 1199 (9th Cir. 2002).
Id. The Court granted Plaintiff twenty-eight days
from the date of the Order to amend his complaint to give him
an opportunity to prove that he exhausted all of his claims
against each Defendant. Id. at 4-5. The Court gave
the following background information relating to exhaustion
in this matter:
Here, Plaintiff alleges that his 602 inmate appeal relating
to the claims in the instant complaint, log no. SVSP-14-05089
(“SVSP-14-05089”), which was submitted to the
Director's level, was “cancelled” on April
27, 2015. Dkt. 1 at 2. He also attaches a copy of the April
27, 2015 letter from Acting Chief M. Voong of the Office of
Appeals, entitled “RE: TLR# 1409391, ” which
cancelled SVSP-14-05089 as untimely and states as follows:
Your appeal has been cancelled pursuant to the California
Code of Regulations, Title 15, Section (CCR) 3084.6(c)(4).
Time limits for submitting the appeal are exceeded even
though you had the opportunity to submit within the
prescribed time constraints.
The Second Level Response was returned to you on 12/19/14.
The appeal package was first received in our office on
1/23/15. This exceeds time constraints to submit for third
Pursuant to CCR 385.6(e), once an appeal has been cancelled,
that appeal may not be resubmitted. However, a separate
appeal can be filed on the cancellation decision. The
original appeal may only be submitted if the appeal on the
cancellation is granted. You have 30 calendar days to appeal
the cancellation. Time constrains begin from the date on the
screen out form which cancelled your appeal.
Id. at 6. There is nothing in the record showing
that Plaintiff filed a separate appeal on the cancellation
decision, as he was instructed above.
The obligation to exhaust persists as long as some remedy is
available; when that is no longer the case, the prisoner need
not further pursue the grievance. Brown v. Valoff,
422 F.3d 926, 934-35 (9th Cir. 2005). A prisoner need not
exhaust further levels of review once he has either received
all the remedies that are “available” at an
intermediate level of review, or has been reliably informed
by an administrator that no more remedies are available.
Id. at 935.
As mentioned above, Plaintiff's cancelled SVSP-14-05089
does not exhaust administrative remedies. See Cal.
Code Regs. tit. 15, § 3084.1(b). Because there is
nothing showing whether Plaintiff appealed the cancellation
decision, the record is unclear whether Plaintiff exhausted
his claims before filing his federal complaint.
Id. at 3-4. The Court then determined that
“Plaintiff's claims [were] unexhausted and subject
to dismissal.” Id. at 4. However, as
mentioned, the Court chose to dismiss Plaintiff's
complaint with leave to amend in order to give him an
opportunity to prove that he exhausted all of his claims
against each Defendant. Id. The Court instructed as
follows: “If Plaintiff did exhaust his administrative
remedies with respect to any or all of those claims before
filing this action, he may amend his complaint to so allege .
. . .” Id. Plaintiff was warned that the
failure to timely file an amended complaint would result in
the dismissal of the complaint without prejudice to
Plaintiff's filing a new action after administrative
remedies have been exhausted. Id. at 4-5.
November 30, 2016, the Court noted that the time for
Plaintiff to file his amended complaint had passed, and that
Plaintiff never filed an amended complaint. Dkt. 5 at 1. The
Court dismissed ...