United States District Court, N.D. California
DONALD R. HUMPHREYS, Plaintiff,
R BINKELE, et al., Defendants.
ORDER OF DISMISSAL
HAYWOOD S. GILLIAM, JR., UNITED STATES DISTRICT JUDGE.
an inmate at the Correctional Training Facility proceeding
pro se, filed this civil rights action pursuant to
42 U.S.C. § 1983. For the reasons set forth below, this
action will be DISMISSED without prejudice for failure to
exhaust administrative remedies.
3, 2019, the Court screened Plaintiff's second amended
complaint, which is docketed at Dkt. No. 55. Dkt. No. 66. The
Court found that the second amended complaint, filed on
February 22, 2019, alleged that between July 2018 and
February 2019, correctional officers Baldin, Maldonald,
Cuevas, and Lipatore stole Plaintiff's mail and ordered
other officers not to distribute his mail to him; prevented
Plaintiff from receiving his legal mail; and retaliated
against Plaintiff for filing lawsuits against Officer Baldin
by withholding his mail. Dkt. No. 66 at 3 (citing to Dkt. No. 55
at 4-13). The Court noted that, from the face of the second
amended complaint, it did not appear that Plaintiff had
exhausted his available administrative remedies with respect
to the claims raised in the SAC before filing. Id.
The Court ordered Plaintiff to file a response within 28
days, explaining why this action should not be dismissed for
failure to exhaust administrative remedies. Id.
responded to the Court's June 3, 2019 Order to Show Cause
by filing exhibits in the record on June 19, 2019, Dkt. No.
67, and by filing a declaration with the Court on July 5,
2019, Dkt. No. 68. Plaintiff's exhibits indicate that on
January 16, 2019, Plaintiff filed Grievance No. CTF-19-00286,
which alleged that Officers Baldin, Lipatore, Cuevas, and
Maldonald had been stealing his mail. Dkt. No. 67 at 2-5. The
second level response construed this grievance as alleging
that Officers Baldin, Lipatore, Cuevas, and Maldonald had
been stealing his mail from approximately October 7, 2018
through January 31, 2019. Dkt. No. 67 at 6. The second level
response granted his grievance in part in that an
investigation was conducted into Plaintiff's allegations,
but otherwise denied the grievance, finding that correctional
staff did not violate CDCR policy with respect to the issues
grieved. Id. Plaintiff appealed this denial to the
third level of review, but the appeal was rejected on May 7,
2019 because it lacked a necessary supporting document.
Id. at 1. There is nothing in the record that shows
that Plaintiff resubmitted his appeal to the third level or
that Grievance No. 19-00286 received a final decision at the
third level of review. In his declaration, Plaintiff alleges
that he has not received mail since November 6, 2018, due to
various correctional officers, including Officers Baldin,
Lipatore, Cuevas, and Maldonald, stealing his mail. Dkt. No.
1997e(a) of the Prison Litigation Reform Act of 1995
(“PLRA”) provides 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). Prisoners are
required to exhaust the available administrative remedies
prior to filing suit. Jones v. Bock, 549 U.S. 199,
211 (2007). The exhaustion requirement applies to all
prisoner suits relating to prison life. Porter v.
Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required
regardless of the relief sought by the prisoner and
regardless of the relief offered by the process, unless
“the relevant administrative procedure lacks authority
to provide any relief or to take any action whatsoever in
response to a complaint.” Booth v. Churner,
532 U.S. 731, 736, 741 (2001); Ross v. Blake, 136
S.Ct. 1850, 1857, 1859 (2016). An action must be dismissed
unless the prisoner exhausts his available administrative
remedies before he or she files suit, even if the
prisoner fully exhausts while the suit is pending.
McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.
2002); see also Vaden v. Summerhill, 449 F.3d 1047,
1051 (9th Cir. 2006) (where administrative remedies are not
exhausted before prisoner sends complaint to court, it will
be dismissed even if exhaustion is completed by the time
complaint is actually filed). But a prisoner satisfies the
exhaustion requirement as long as he exhausts his
administrative remedies prior to filing an amended complaint.
See Rhodes v. Robinson, 621 F.3d 1002, 1006 (9th
Cir. 2010) (PLRA's exhaustion requirement was satisfied
for new claims raised in amended complaint which arose after
original complaint was filed where administrative remedies
for new claims were exhausted prior to filing of amended
complaint). If the Court concludes that a plaintiff has
failed to exhaust his or her administrative remedies, the
proper remedy is dismissal without prejudice of the portions
of the complaint barred by section 1997e(a). Jones,
549 U.S. at 223-24.
California prison grievance system has three levels of
review; an inmate exhausts administrative remedies by
obtaining a decision at each level.” Reyes v.
Smith, 810 F.3d 654, 657 (9th Cir. 2016) (citing 15 Cal.
Code Regs. § 3084.1(b) (2011) and Harvey v.
Jordan, 605 F.3d 681, 683 (9th Cir. 2010)). “The
third level of review exhausts administrative remedies . .
.” 15 Cal. Code Regs. § 3084.7(d)(3).
record shows that Plaintiff failed to exhaust administrative
remedies with respect to his claims in the second amended
complaint prior to filing. The second amended complaint was
filed on February 22, 2019. See Dkt. No. 55. The
Court will assume arguendo that Grievance No. 19-00268
grieves some, or all, of the same claims as those raised in
the second amended complaint. However, as of the date of the
filing of the second amended complaint, Plaintiff had only
received a second level response to this grievance. A
decision at the third level of review is required to exhaust
CDCR's administrative remedies. 15 Cal. Code Regs. §
3084.1(b) (“Unless otherwise stated in these
regulations, all appeals are subjected to a third level of
review, as described in section 3084.7, because
administrative remedies are exhausted.”); see
also 15 Cal. Code Regs. § 3084.7(d)(3). Plaintiff
therefore did not exhaust his administrative remedies with
respect to his claims in the second amended complaint prior
to filing,  and this action must be DISMISSED without
prejudice for failure to exhaust administrative remedies.
See Vaden, 449 F.3d at 1051.
foregoing reasons, this action is DISMISSED for failure to
exhaust administrative remedies without prejudice to refiling
a new, separate action once Plaintiff has finished exhausting
his administrative remedies with respect to the claims raised
in the SAC. The Clerk shall terminate all pending motions,
enter judgment in favor of Defendants, and close the file.