United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983, seeks leave to proceed
in forma pauperis, He has also filed a motion for appointment
of counsel, a motion for preliminary injunctive relief, and a
motion to be transferred.
to Proceed In Forma Pauperis
application and finds that it makes the showing required by
28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate
order, the court directs the agency having custody of
plaintiff to collect and forward the appropriate monthly
payments for the filing fee as set forth in 28 U.S.C. §
1915(b)(1) and (2).
for Appointment of Counsel
District courts lack authority to require counsel to
represent indigent prisoners in section 1983 cases.
Mallard v. United States Dist. Court, 490 U.S. 296,
298 (1989). In exceptional circumstances, the court may
request an attorney to voluntarily to represent such a
plaintiff. See 28 U.S.C. § 1915(e)(1);
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
1991); Wood v. Housewright, 900 F.2d 1332, 1335-36
(9th Cir. 1990). When determining whether “exceptional
circumstances” exist, the court must consider the
likelihood of success on the merits as well as the ability of
the plaintiff to articulate his claims pro se in light of the
complexity of the legal issues involved. Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having
considered those factors, the court finds there are no
exceptional circumstances in this case. Thus, the court
declines to appoint counsel at this time.
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
the Prison Litigation Reform Act of 1995 provides that
“[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, 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). This requirement is mandatory and
unequivocal. Booth v. Churner, 532 U.S. 731, 741
(2001); McKinney v. Carey, 311 F.3d 1198, 1200 (9th
Cir. 2002) (“Congress could have written a statute
making exhaustion a precondition to judgment, but it did not.
The actual statute makes exhaustion a precondition to
suit.”). Therefore, a prisoner must exhaust
available administrative remedies before filing any papers in
federal court and is not entitled to a stay of judicial
proceedings in order to exhaust. Vaden v.
Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006);
McKinney, 311 F.3d 1198.
prisoners may appeal “any policy, decision, action,
condition, or omission” that the inmate can demonstrate
“as having an adverse effect upon his or her
welfare.” Cal. Code Regs. tit. 15, § 3084.1(a).
The grievance process, as defined by California regulations,
has three levels of review to address an inmate's claims,
subject to certain exceptions. See Cal. Code Regs.
tit. 15, § 3084.7. Administrative remedies generally are
exhausted once a plaintiff has received a
“Director's Level Decision, ” or third level
review, with respect to his issues or claims. Id.,
plaintiff alleges that various prison officials at California
State Prison, Sacramento have violated his rights under the
United States Constitution. ECF No. 1. Plaintiff alleges that
there is a grievance procedure available to him and that he
has filed a grievance concerning the facts relating to his
complaint. Id. at 4, ¶ 5. He also states that
he submitted an appeal to the highest level of review
“almost (30) days ago and it hasn't been returned
to [him].” CDCR regulations, however, allow for at
least 60 working days for the completion of responses at this
level of review. Cal. Code Regs. tit. 15, §
3084.8(c)(3). By implication then, plaintiff concedes that he
did not provide CDCR with the opportunity to respond to his
grievance before initiating suit. Thus, it appears from the
face of plaintiff's complaint that he has prematurely
filed suit. See Porter v. Nussle, 534 U.S. 516, 524
(2002) (“All ‘available' remedies must . . .
be exhausted; those remedies need not meet federal standards,
nor must they be ‘plain, speedy, and
plaintiff will be required to show cause why this case should
not be dismissed, without prejudice, for failure to exhaust
administrative remedies prior to filing suit. See Wyatt
v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003)
(prisoner's concession to nonexhaustion is valid ground
for dismissal of an action, so long as no exception applies),
overruled on other grounds by Albino v. Baca, 747
F.3d 1162 (9th Cir. 2014) (en banc).
IT IS HEREBY ORDERED
1. Plaintiff's request for leave to proceed in forma
pauperis (ECF ...