Opinion
No. CIV S-06-1882 MCE DAD P.
August 28, 2006
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a complaint presented on the form to be used by a prisoner seeking relief under the Civil Rights Act, 42 U.S.C. § 1983. Plaintiff has also filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
The district court is required to screen every complaint brought by a prisoner seeking relief against a governmental entity or employees of a governmental entity. 28 U.S.C. § 1915A. The court must dismiss claims that are frivolous or malicious, claims that fail to state a claim upon which relief may be granted, and claims that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). In addition, the court must dismiss a case in which the plaintiff seeks to proceed in forma pauperis if the action is frivolous or malicious, fails to state a claim, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915(e)(2).
The plaintiff in this case is a state prisoner confined in California Medical Facility. Plaintiff seeks declaratory relief and damages from seven correctional officers under Title II of the Americans With Disabilities Act ("ADA"). (Compl. at pages electronically numbered 2, 3 7.) Plaintiff alleges that since February 25, 2006, the defendants have singled him out for ongoing harassment because of his mental handicap and that the harassment consists of subjecting him to excessive noise on every possible occasion, such as deliberately waking him from a sound sleep by banging on his door and then asking him if he had a heart attack. (Id. at pages electronically numbered 2 6.) Plaintiff alleges that there is a grievance procedure available at his institution, that he did not file a grievance concerning the facts relating to his complaint, and that he did not do so because exhaustion is not required for claims brought under Title II of the ADA. (Compl. at page electronically numbered 2.)
By the Prison Litigation Reform Act of 1995 ("PLRA"), Congress amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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) (emphasis added). The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
Exhaustion of prison administrative procedures is mandated regardless of the relief offered through such procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). A remedy is available for purposes of the PLRA as long as the administrative process has authority to take some action in response to the prisoner's grievance, even if the action that might be taken is not the remedial action sought by the prisoner. Id. at 736. Courts may not read futility or other exceptions into the statutory exhaustion requirement of the PLRA. Id. at 741 n. 6.
A prisoner's concession to nonexhaustion is a valid ground for dismissal of an action. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003); McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (per curiam). If the court concludes that the prisoner has not exhausted administrative remedies, the proper remedy is dismissal without prejudice. 315 F.3d at 1120.
In the present case, plaintiff is mistaken in his belief that the exhaustion requirement does not apply to claims brought under the ADA. The ADA is a federal law. Under § 1997e(a), the exhaustion requirement applies to every action brought with respect to prison conditions, whether the action is brought under 42 U.S.C. § 1983 "or any other Federal law." 42 U.S.C. § 1997e(a). Accordingly, a California state prisoner may not bring an action in federal court under the ADA until he has exhausted available administrative remedies by first completing and submitting the state's "Reasonable Modification or Accommodation Request" form and then by taking all steps required by the state for processing the form. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005).
Because plaintiff's complaint contains a concession to nonexhaustion, his application to proceed in forma pauperis should be denied and this case should be dismissed without prejudice to the filing of a new action after plaintiff completes the grievance procedure available for ADA claims. Plaintiff is advised that a new action brought after administrative exhaustion has been completed should not bear the case number assigned to this action. A new application to proceed in forma pauperis must be submitted with the new action.
In accordance with the above, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's August 22, 2006 application to proceed in forma pauperis be denied; and
2. This action be dismissed without prejudice for failure to exhaust available administrative remedies before bringing this action.
These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. A document containing objections should be titled "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may, under certain circumstances, waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).