Opinion
CV F 98 6506 AWI SMS P.
April 28, 2004
Plaintiff Daniel Dean Sheets ("Plaintiff"), a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.
On February 12, 2004, the Magistrate Judge filed Findings and Recommendations that recommend Defendants' motion to dismiss be granted and this action be dismissed for Plaintiff's failure to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). The Magistrate Judge also recommended that Plaintiff's motion to file a fourth amended complaint and Plaintiff's request for an extension of the deadlines for completing discovery, amending the pleadings, and filing pre-trial dispositive motions be denied. The Findings and Recommendations were served on the parties and gave notice that any objections were to be filed within thirty days.
On March 16, 2004, Plaintiff filed objections to the Findings and Recommendations.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)C) this court has conducted a de novo review of this case. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having carefully reviewed the entire file, the court finds the Findings and Recommendations to be supported by the record and by proper analysis. The court agrees with the Magistrate Judge's finding that Plaintiff did not exhaust his administrative remedies "No 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). A prisoner must exhaust his administrative remedies before filing suit, and a case must still be dismissed if a prisoner exhausts his remedies after a suit is filed. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).
In his objections, Plaintiff does not disagree with the Magistrate Judge's finding that he did not exhaust his administrative remedies prior to filing suit. Rather, Plaintiff contends, as he did in his opposition to the motion to dismiss, that administrative remedies were unavailable. Specifically, Plaintiff alleges that law enforcement had asked him not to file an administrative appeal concerning the events underlying this action because it would hurt their investigation. Plaintiff claims he followed their instructions, but after seven months with no contact with law enforcement, Plaintiff filed this action. Plaintiff alleges he was afraid of retaliation if he filed an administrative appeal.
The court agrees with the Magistrate Judge's conclusion that law enforcement's request that Plaintiff not file an administrative appeal does not make the administrative process unavailable. While law enforcement's request did pose a possible problem to the exhaustion requirement, at some point, Plaintiff choose to ignore law enforcement's request. As explained by the Magistrate Judge, once Plaintiff decided law enforcement was not going to assist him and he would disregard their request, Plaintiff needed to have exhausted his administrative remedies before filing this action.
The court also finds Plaintiff's fear of retaliation, seven months after the last of the underlying incidents, insufficient to exhaust the exhaustion requirement. "A general fear of retaliation is not an exception to the PLRA's exhaustion requirement." Hines v. Valhalla County Corr., 2002 WL 1822740, *2 (S.D.N.Y. 2002) (emphasis added). Plaintiff has failed to allege sufficient facts to show that Plaintiff would have be retaliated against had he filed an administrative appeal. See Liggins v. Barnett, 2001 WL 737551, *15 (S.D.Iowa 2001) (finding threats and actual conduct interfering with grievance process sufficient to make administrative remedies unavailable). Plaintiff has set forth no argument, supported by evidence or otherwise, that any defendant or other staff member prevented him from utilizing the grievance process with respect to his claims at the time Plaintiff choose to file this action. See McNair v. Jones, 2002 WL 31082948, at *8 (S.D.N.Y. 2002) (case in which plaintiff did not suggest that prison employees prevented him from filing a grievance was distinguishable from those cases in which exhaustion was excused because the inmates made reasonable efforts to exhaust but were prevented from doing so by prison employees). The court is cognizant of the fact that Plaintiff alleges he had been retaliated against in the past and he had been asked to not file an appeal. Nonetheless, this court is in agreement with the Hines court that, in light of the Supreme Court's holding in Porter v. Nussle, 534 U.S. 516, 520 (2002) that the exhaustion requirement applies to all claims, something more than a generalized fear of retaliation is required before the court will overlook the failure to even attempt to utilize the grievance process prior to filing suit.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations filed on February 12, 2004, are ADOPTED IN FULL;
2. Plaintiff's motion for leave to file a fourth amended complaint, set forth in Plaintiff's opposition filed October 28, 2003, is DENIED;
3. Plaintiff's request for an extension of the deadlines for completing discovery, amending the pleadings, and filing pre-trial dispositive motions, filed September 30, 2003, is DENIED;
4. Defendants' motion to dismiss, filed October 3, 2003, is GRANTED;
5. Pursuant to 42 U.S.C. § 1997e(a), this action is DISMISSED, without prejudice, based on Plaintiff's failure to exhaust prior to filing suit; and
6. The Clerk of the Court is DIRECTED to close the file.