Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stribling v. Rowe

United States District Court, N.D. California

May 31, 2018

AARON LAMONT STRIBLING, Plaintiff,
v.
DR. ROWE, et al., Defendants.

          ORDER DENYING MOTION FOR RECONSIDERATION

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE

         Plaintiff, a state prisoner, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983.

         On 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 level review.
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.

         On 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.