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Bonty v. Indermill

United States District Court, E.D. California
Sep 28, 2006
CASE NO. CV-F-06-0129 OWW DLB P (E.D. Cal. Sep. 28, 2006)

Opinion

CASE NO. CV-F-06-0129 OWW DLB P.

September 28, 2006


FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF THIS ACTION, WITHOUT PREJUDICE, BASED ON PLAINTIFF'S REQUEST TO POSTPONE DECISION FOR EXHAUSTION OF ADMINISTRATIVE REMEDIES (Doc. 14)


Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on February 6, 2006.

Pursuant to the Prison Litigation Reform Act of 1995, "[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). The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison life. Porter v. Nussle, 435 U.S. 516, 532 (2002). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion must occur prior to filing suit. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Plaintiff may not exhaust while the suit is pending.McKinney, 311 F.3d at 1199-1201.

On September 25, 2006, plaintiff filed a motion for leave to complete administrative process. In his motion, plaintiff states that his administrative appeal regarding the issues before the court was submitted to the directors level of review on August 6, 2006. Plaintiff requests that the Court postpone its decision in his case until the process is complete.

The Court cannot grant plaintiff's request. Because is it clear from plaintiff's motion that he did not exhaust the available administrative remedies prior to filing suit, this action must be dismissed. 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) ("A prisoner's concession to nonexhaustion is a valid grounds for dismissal. . . ."). Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, without prejudice, based on plaintiff's failure to comply with 42 U.S.C. § 1997e(a) by exhausting the available administrative remedies prior to filing suit. Plaintiff may refile this action upon exhaustion of the administrative process.

These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.


Summaries of

Bonty v. Indermill

United States District Court, E.D. California
Sep 28, 2006
CASE NO. CV-F-06-0129 OWW DLB P (E.D. Cal. Sep. 28, 2006)
Case details for

Bonty v. Indermill

Case Details

Full title:MILES O. BONTY, Plaintiff, v. R. INDERMILL, et al., Defendants

Court:United States District Court, E.D. California

Date published: Sep 28, 2006

Citations

CASE NO. CV-F-06-0129 OWW DLB P (E.D. Cal. Sep. 28, 2006)