Opinion
CASE NO. 1:06-CV-0412-OWW-DLB P.
August 7, 2007
ORDER DISMISSING ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST PRIOR TO FILING SUIT (Doc. 1)
Plaintiff Willie Weaver ("plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April 10, 2006, but has requested leave to proceed in forma pauperis.
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). "Proper exhaustion[, which] demands compliance with an agency's deadlines and other critical procedural rules. . . ." is required, Ngo v. Woodford, 126 S.Ct. 2378, 2386 (2006), and must occur prior to filing suit, McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).
Plaintiff has filed over one-hundred forty-two actions in this district, the vast majority of which were filed in 2006, and on November 17, 2006, in case number 1:06-cv-01343-AWI-WMW P, Magistrate Judge William Wunderlich issued an order to show cause why plaintiff should not be declared a vexatious litigant and subjected to a pre-filing review order. Recently, the court has dismissed numerous cases based on plaintiff's concession in his complaint that exhaustion of his claim had not yet occurred. See e.g., 1:06-cv-01066-AWI-SMS P; 1:06-cv-01102-AWI-SMS P; 1:06-cv-01198-AWI-SMS P; 1:06-cv-01204-OWW-SMS P 1:06-cv-01206-AWI-SMS P. In this action, plaintiff alleges that he filed an inmate appeal and the process is complete.
However, in his complaint, plaintiff alleges that on April 3, 2006, he was denied access to the law library. Plaintiff dated his complaint April 3, 2006, and it was received and filed on April 10, 2006. The court finds that it is an impossibility for plaintiff to have properly utilized the prison's administrative grievance process, which involves one informal level and three formal levels of appeal, Cal. Code Regs., Tit. 15 § 3084.5 (2006), and exhausted his appeal when the events upon which he is attempting to impose liability occurred on the date he drafted his complaint.
This action is therefore 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. IT IS SO ORDERED.