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Case4:12-cv-05187-YGR Document8 Filed06/04/13 Page1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ARONDO AUSTIN,

Plaintiff,

v.
J. CERMENO, et al.,

/

Defendants.

No. C 12-05187 YGR (PR)

ORDER OF DISMISSAL WITH LEAVE
TO AMEND

INTRODUCTION

Plaintiff filed this pro se civil rights complaint under 42 U.S.C. § 1983. He also seeks leave

to proceed in forma pauperis, which will be granted in a separate Order.

The Court now conducts its initial review of the complaint pursuant to 28 U.S.C. § 1915A.

DISCUSSION

I.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that
are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary
relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se
pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1988).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the
alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487
U.S. 42, 48 (1988).

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A supervisor may be liable under § 1983 upon a showing of personal involvement in the

constitutional deprivation or a sufficient causal connection between the supervisor's wrongful
conduct and the constitutional violation. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th
Cir. 1991) (en banc) (citation omitted). A supervisor therefore generally "is only liable for
constitutional violations of his subordinates if the supervisor participated in or directed the
violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d
1040, 1045 (9th Cir. 1989). This includes evidence that a supervisor implemented "a policy so
deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the
constitutional violation." Redman, 942 F.2d at 1446; see Jeffers v. Gomez, 267 F.3d 895, 917 (9th
Cir. 2001).
II.

Exhaustion
A question which must be answered before Plaintiff can proceed with his claims is whether

he has exhausted available administrative remedies with respect to each claim.

The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996)

(PLRA), amended 42 U.S.C. § 1997e to provide that "[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). Under this section, an action must be dismissed unless the
prisoner exhausted his available administrative remedies before he filed suit, even if the prisoner
fully exhausts while the suit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.
2002). "[T]he PLRA's 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 all "available"
remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain,
speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 739-40 & n.5 (2001). Even
when the prisoner seeks relief not available in grievance proceedings, notably money damages,
exhaustion is a prerequisite to suit. Id. at 741. The purposes of the exhaustion requirement include

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Case4:12-cv-05187-YGR Document8 Filed06/04/13 Page3 of 5

allowing the prison to take responsive action, filtering out frivolous cases and creating an
administrative record. See Porter, 534 U.S. at 525.

A prisoner's concession to nonexhaustion is a valid ground for dismissal, so long as no

exception to exhaustion applies. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.), cert. denied, 540
U.S. 810 (2003). Accordingly, a claim may be dismissed without prejudice if it is clear from the
record that the prisoner has conceded that he did not exhaust administrative remedies. Id.

The State of California provides its inmates and parolees the right to appeal administratively
"any departmental decision, action, condition or policy perceived by those individuals as adversely
affecting their welfare." See Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its inmates the
right to file administrative appeals alleging misconduct by correctional officers. See id. § 3084.1(e).
In order to exhaust available administrative remedies within this system, a prisoner must proceed
through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602
inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level
appeal to the Director of the California Department of Corrections and Rehabilitation. See id.
§ 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the
administrative remedies exhaustion requirement under § 1997e(a). See id. at 1237-38.

Here, the record is unclear whether Plaintiff exhausted his claims to the Director's level

before filing his federal complaint. Plaintiff contends that his "appeals [were] never returned back to
him." (Compl. at 2.) He adds that he filed "several appeals that [were] intentional[ly] and
unjustifiabl[y] interfered with . . . hindering [his] rights to exhaust [his] remedies fully." (Id.)
However, Plaintiff's allegations are conclusory because he does not support them with additional
information relating to these appeals, i.e., the dates they were submitted or the claims that he
attempted to exhaust. It thus appears Plaintiff has not exhausted his administrative remedies as
required by 42 U.S.C. § 1997e(a).

Accordingly, it appears that Plaintiff's claims are unexhausted and subject to dismissal.

Therefore, Plaintiff's complaint is DISMISSED with leave to amend his complaint to prove that he
exhausted all of his claims against each Defendant before he filed this action. If Plaintiff did

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Case4:12-cv-05187-YGR Document8 Filed06/04/13 Page4 of 5

exhaust his administrative remedies with respect to any or all of those claims before filing this
action, he may amend his complaint to so allege, as set forth below.

CONCLUSION

For the foregoing reasons, the Court orders as follows:
1. Within twenty-eight (28) days from the date of this Order, Plaintiff shall file an

amended complaint as set forth above. Plaintiff must use the attached civil rights form, write the
case number for this action -- Case No. C 12-05187 YGR (PR) -- on the form, clearly label the
complaint "Amended Complaint," and complete all sections of the form. Because an amended
complaint completely replaces the original complaint, Plaintiff must include in it all the claims he
wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915
(1992); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); London v. Coopers & Lybrand, 644 F.2d
811, 814 (9th Cir. 1981). He may not incorporate material from the original complaint by reference.
He must also specify whether he exhausted or was prevented from exhausting his administrative
remedies with respect to any or all of those claims before filing this action. Plaintiff's failure to file
an amended complaint by the deadline will result in the dismissal of this action without
prejudice.
2.

It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court
informed of any change of address and must comply with the Court's orders in a timely fashion.
Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes
while an action is pending must promptly file a notice of change of address specifying the new
address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail
directed to the pro se party by the Court has been returned to the Court as not deliverable, and
(2) the Court fails to receive within sixty days of this return a written communication from the pro
se party indicating a current address. See L.R. 3-11(b).

3.

Extensions of time are not favored, though reasonable extensions will be granted.

Any motion for an extension of time must be filed no later than fourteen (14) days prior to the
deadline sought to be extended.

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4.

The Clerk of the Court shall send Plaintiff a blank civil rights form along with a copy

of this Order.

IT IS SO ORDERED.

DATED: June 4, 2013




YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

G:\PRO-SE\YGR\CR.12\Austin5187.DWLA.wpd

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