stating all dismissals under Section 1997e(a) should be 3 dismissals without prejudice
How later courts described this case
- stating all dismissals under Section 1997e(a) should be 3 dismissals without prejudice
- Ninth Circuit agreeing with Ford 15 analysis and adopting its holding as its own
- finding complaint was “brought” when mailed to court 14 even though not filed
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 TEDORO SEVERIANO ALCARAZ, No. 2:19-cv-0030 JAM DB P
12 Plaintiff,
13 v. ORDER
14 MICHAEL MARTEL,
15 Defendant.
16
17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and
18 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. (ECF Nos. 1,
19 7, 9). This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §
20 636(b)(1)(B).
21 For the reasons stated below, the court shall order plaintiff to show cause why this action
22 should not be dismissed without prejudice for failure to exhaust administrative remedies. In
23 addition, it shall deny both of plaintiff’s motions to proceed in forma pauperis as premature.
24 I. PLAINTIFF’S COMPLAINT
25 Plaintiff’s complaint names the following California Health Care Facility employees as
26 defendants: Warden Michael Martel, Correctional Sergeant Morris and Appeals Coordinator S.
27 De Jesus as defendants. (See ECF No. 1 at 1-8). He alleges that defendants violated his rights
28 when they denied him access to the courts and failed to protect him. (See generally id. at 3-8). A
1 review of plaintiff’s complaint clearly indicates that he did not exhaust his state administrative
2 remedies prior to bringing this action. (See id. at 3).
3 II. LEGAL STANDARDS FOR EXHAUSTION
4 A. Prison Litigation Reform Act
5 Because plaintiff is a prisoner challenging the conditions of his confinement, his claims
6 are subject to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). “The PLRA
7 mandates that inmates exhaust all available administrative remedies before filing ‘any suit
8 challenging prison conditions,’ including, but not limited to, suits under § 1983.” Albino v. Baca,
9 747 F.3d 1162, 1171 (9th Cir. 2014) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)).
10 Regardless of the relief sought, a prisoner must pursue an appeal through all levels of a
11 prison’s grievance process as long as some remedy remains available. “The obligation to exhaust
12 ‘available’ remedies persists as long as some remedy remains ‘available.’ Once that is no longer
13 the case, then there are no ‘remedies . . . available,’ and the prisoner need not further pursue the
14 grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis and alteration in
15 original) (citing Booth v. Churner, 532 U.S. 731 (2001)).
16 “Under § 1997e(a), the exhaustion requirement hinges on the ‘availab[ility]’ of
17 administrative remedies: An inmate . . . must exhaust available remedies but need not exhaust
18 unavailable ones.” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (brackets in original). In
19 discussing availability in Ross the Supreme Court identified three circumstances in which
20 administrative remedies were unavailable: (1) where an administrative remedy “operates as a
21 simple dead end” in which officers are “unable or consistently unwilling to provide any relief to
22 aggrieved inmates;” (2) where an administrative scheme is “incapable of use” because “no
23 ordinary prisoner can discern or navigate it;” and (3) where “prison administrators thwart inmates
24 from taking advantage of a grievance process through machination, misrepresentation, or
25 intimidation.” Ross, 136 S. Ct. at 1859-60. “[A]side from [the unavailability] exception, the
26 PLRA’s text suggests no limits on an inmate’s obligation to exhaust – irrespective of any ‘special
27 circumstances.’” Id. at 1856. “[M]andatory exhaustion statutes like the PLRA establish
28 mandatory exhaustion regimes, foreclosing judicial discretion.” Id. at 1857.
1 B. California Regulations Governing Exhaustion of Administrative Remedies
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“The California prison system’s requirements ‘define the boundaries of proper
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exhaustion.’” Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (quoting Jones, 549 U.S.
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at 218). In order to exhaust, the prisoner is required to complete the administrative review
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process in accordance with all applicable procedural rules. Woodford, 548 U.S. at 90. California
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regulations allow a prisoner to “appeal” any action or inaction by prison staff that has “a material
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adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a)
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(2017).1 The appeal process is initiated by the inmate’s filing a “Form 602” the “Inmate/Parolee
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Appeal Form,” “to describe the specific issue under appeal and the relief requested.” Id., §
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3084.2(a). “The California prison grievance system has three levels of review: an inmate
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exhausts administrative remedies by obtaining a decision at each level.” Reyes v. Smith, 810
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F.3d 654, 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b) (2011); Harvey v.
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Jordan, 605 F.3d 681, 683 (9th Cir. 2010)).
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Each prison is required to have an “appeals coordinator” whose job is to “screen all
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appeals prior to acceptance and assignment for review.” Cal. Code Regs. tit. 15, § 3084.5(b).
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The appeals coordinator may refuse to accept an appeal and does so either by “rejecting” or
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“canceling” it. Id., § 3084.6(a) (“Appeals may be rejected pursuant to subsection 3084.6(b), or
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cancelled pursuant to subsection 3084.6(c), as determined by the appeals coordinator.”).
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“Cancellation” is reserved for those appeals which the inmate cannot simply correct. For
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example, an appeal can be cancelled if the action complained of “is not within the jurisdiction” of
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the CDCR, or if time limits for submitting the appeal have been exceeded. Id., § 3084.6(c)(1),
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(4). Upon “cancellation” of the appeal, the inmate’s only recourse, if he still wishes to pursue it,
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is to show that the reason given for the cancellation was inaccurate or erroneous, or that “new
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information” now makes it eligible for review. Id., § 3084.6(a)(3) (cancelled appeal may later be
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1 All citations to Title 15 of the California Code of Regulations are, unless otherwise noted, for
28 the current version, which has been unchanged, in pertinent part, since January 2011.
1 accepted “if a determination is made that cancellation was made in error or new information is
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received which makes the appeal eligible for further review”).
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According to the regulations, “a cancellation or rejection decision does not exhaust
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administrative remedies.” Id., § 3084.1(b) (emphasis added). Outside any exceptions outlined
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in the regulations, “all appeals are subject to a third level of review, as described in section
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3084.7, before administrative remedies are deemed exhausted.” Id.
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III. DISCUSSION
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A. Plaintiff’s Complaint
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A review of plaintiff’s complaint indicates that it is clear on its face that plaintiff did not
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exhaust his state administrative remedies prior to bringing this action. (See ECF No. 1 at 3).
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Specifically, in response to the question of whether he has appealed his request for relief to the
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highest level, plaintiff responds in the negative. (See id. at 3). Thereafter, in an effort to explain
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why he has not fully exhausted his administrative remedies, plaintiff writes: “The appeal was
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cancelled at the first level. I appealed the cancellation, and that appeal was cancelled as well,
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rendering the administrative remedies ‘unavailable’.” (See id. at 3).
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The law is clear: The prison administrative process must be pursued as the first and
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primary forum for redress of grievances. Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir.
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2006). “All appeals are subject to a third level of review . . . before administrative remedies are
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deemed exhausted.” Cal. Code Regs. Tit. 15, § 3084.1(b). Moreover, a cancelled grievance is
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not administratively exhausted. See id.
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Aside from the fact that plaintiff’s reasons for not having exhausted his administrative
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remedies prior to filing the instant action contradict existing law, plaintiff’s complaint fails to
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proffer any of the lawful exceptions to the exhaustion rule that would eliminate the exhaustion
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requirement. See, e.g., Ross, 136 S. Ct. at 1859-60. Thus, when measured up against both case
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and statutory law, on its face, plaintiff has not properly exhausted his claims, and he has provided
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no lawful excuse for not having done so. Therefore, this court may not review plaintiff’s
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complaint. Instead, plaintiff will be ordered to show cause why this action should not be
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1 dismissed without prejudice for failure to exhaust administrative remedies. See Ford v. Johnson,
2 362 F.3d 395, 401 (7th Cir. 2004) (stating all dismissals under Section 1997e(a) should be
3 dismissals without prejudice).
4 B. Plaintiff’s In Forma Pauperis Application
5 Section 1997e(a) states: “No action shall be brought with respect to prison conditions
6 under [S]ection 1983 of this title, or any other Federal law, by a prisoner confined in any jail,
7 prison, or other correctional facility until such administrative remedies as are available are
8 exhausted.” 42 U.S.C. § 1997e(a) (brackets added). An action has been “brought” for purposes
9 of Section 1997e(a) when the prisoner submits the complaint to the court, not when it is
10 subsequently filed.2 Vaden, 449 F.3d at 1050 (citation omitted); see also O’Neal v. Price, 531
11 F.3d 1146, 1151-52 (9th Cir. 2008) (citing Vaden).
12 “Neither fee collection nor notice to the adversary is at issue when applying [Section]
13 1997e(a).” Ford, 362 F.3d at 398-99 (finding complaint was “brought” when mailed to court
14 even though not filed); see generally Vaden, 449 F.3d at 1050 (Ninth Circuit agreeing with Ford
15 analysis and adopting its holding as its own).
16 Although plaintiff has filed applications to proceed in forma pauperis (see ECF Nos. 7, 9),
17 plaintiff has brought this action prior to exhausting his administrative remedies. Section 1997e(a)
18 categorically forbids a plaintiff from bringing a Section 1983 suit until administrative remedies
19 have been exhausted. See 42 U.S.C. § 1997e(a). This is true irrespective of whether plaintiff has
20 filed an application to proceed in forma pauperis. See Ford, 362 F.3d at 398-99; see also Vaden,
21 449 F.3d at 1050. Therefore, plaintiff’s motions to proceed in forma pauperis are premature. For
22 this reason, they will be denied as such.
23 Accordingly, IT IS HEREBY ORDERED that:
24 1. Plaintiff’s motion to proceed in forma pauperis, filed January 25, 2019 (ECF No. 7), is
25 DENIED as premature;
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2 A claim is “filed” for purposes of Section 1997e(a) when it has been reviewed by the district
27 court and either the filing fee is paid, or the prisoner is permitted to proceed in forma pauperis.
See Ford, 362 F.3d at 398-99; see generally Vaden, 449 F.3d at 1050 (Ninth Circuit agreeing with
28 Ford analysis).
1 2. Plaintiff's motion to proceed in forma pauperis, filed February 13, 2019 (ECF No. 9),
2 | is DENIED as premature, and
3 3. Within thirty days of the date of this order, plaintiff shall show cause why this action
4 | should not be dismissed without prejudice for failure to exhaust administrative remedies.
5 | Plaintiff is warned that failure to show cause within this period will result in a recommendation
6 | that this action be dismissed.
7 | Dated: February 11, 2020
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10 .B ORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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