Free Order on Motion to Dismiss Case - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Dora B. Schriro, et al., Defendants. Keith Robert Barden, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) No. CV 04-138-PHX-EHC ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Pending before the Court is Defendant Schriro's M otion to Dismiss for failure t o exhaust administrative remedies. [Dkt. 17]. The M otion is fully briefed. "No action s hall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law , by a p risoner 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 plaintiff must fully exhaust his administrative remedies before filing a section 1983 complaint. M cKinney v. Carey, 311 F .3d 1198, 1199-1200 (9th Cir. 2002). "If the district court concludes that the prisoner has not exhaus t ed nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Id. at 1120.

In the Arizona Department of Corrections, where Plaintiff is incarcerated, exhaustion of administrative remedies for a medical complaint requires filing an informal inmate grievance, a formal grievance, appealing to the Facilit y H ealth Administrator, and appealing t o the Director. [Dkt. 17, attach. 1, pp. 9-10]. Plaintiff has filed three informal inmate grievances , but has not pursued his administrative remedies beyond this initial stage. [Dkt.

Case 2:04-cv-00138-EHC-GEE

Document 26

Filed 05/23/2006

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19, at t achs .]. Plaintiff argues his failure to exhaust his administrative remedies should be excused because his inmate grievance forms were returned. [Dkt. 19, p. 2]. An inmate must complete the grievance process to exhaust administrative remedies. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) ("An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim... for failure to exhaust his administrative remedies."). Accordingly, IT IS O RD ERED THAT Defendants' M otion to Dismiss [dkt. 17] is GRANTED; Plaintiff's Amended Complaint is DIS MIS S ED without prejudice. DATED this 22nd day of M ay, 2006.

Case 2:04-cv-00138-EHC-GEE

-2Document 26 Filed 05/23/2006

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