ORDER DISMISSING ACTION FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES
[ECF No. 11]
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Travis Washington is appearing pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff consented to United States Magistrate Judge jurisdiction on July 10, 2017. (ECF No. 9.)
Plaintiff filed the initial complaint on June 22, 2017, and a first amended complaint on July 24, 2017, which is currently before the Court for screening.
The 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 on which relief may be granted," or that "seek monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."
Plaintiff names Associate Warden J. Jeeter, counselor B. McKinney, counsel Ms. Drake, and lieutenant Mr. Philpott, as Defendants.
One of Plaintiff's teeth has a filling that is lose and out of place. Plaintiff filed a medical form requesting medical treatment. The dentist told Plaintiff that there was nothing that could be done until he was transferred to another facility.
Plaintiff was programming in the mainline section of North Kern State Prison but was placed back into the reception center by the counselors and Associate Warden J. Jeeter instead of remaining in administrative segregation where he was entitled to a specific program consisting of telephone calls, full canteen privileges, and contact family visitation. As a result of the failure to provide proper programming, Plaintiff contemplated suicide, his marriage was ruined, and suffered emotional damage.
A. Exhaustion of Administrative Remedies
Pursuant to the Prison Litigation Reform Act (PLRA) of 1996, "[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.
Although the "failure to exhaust is an affirmative defense under the PLRA," a prisoner's complaint may be subject to dismissal for failure to state a claim when an affirmative defense appears on its face.
In California, a prison inmate satisfies the administrative exhaustion requirement by following the procedures set forth in sections 3084.1 through 3084.8 of Title 15 of the California Code of Regulations. An inmate "may appeal any policy, decision, action, condition, or omission by the department or its staff that the inmate . . . can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). The regulations require the prisoner to proceed through all three levels of review.
On the complaint form, Plaintiff acknowledges that there is an inmate appeal process available at the institution and he has filed an appeal regarding the facts contained in the complaint. (Compl. at 2.) However, Plaintiff indicates that the process is not complaint and states "I[`]m still waiting for a response from Office of Appeals in Sacramento. I've been transferred to another prison." (
Plaintiff's failure to exhaust his administrative remedies prior to filing suit is clear from the face of the complaint. Based on Plaintiff's concession of nonexhaustion, this action must be dismissed without prejudice.
Based on the foregoing, it is HEREBY ORDERED that Plaintiff's action is dismissed, without prejudice, for failure to exhaust the administrative remedies prior to filing suit. 42 U.S.C. § 1997e(a).
IT IS SO ORDERED.