United States District Court, W.D. Washington, Seattle
ORDER DISMISSING ACTION AND DENYING MOTION FOR
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.
Gabriel Eckard proceeds pro se and in forma
pauperis (“IFP”) in this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff, previously an
inmate at the Monroe Correctional Complex of the Washington
State Department of Corrections (“MCC”), was
moved to Snohomish County Jail on September 4, 2018. On April
10, 2019, Plaintiff filed claims relating to his prior
confinement at the MCC, naming Ashen Deshev, Breanne Caraway,
Eric Jackson and Steven Ewing as Defendants. On April 22,
2019, Magistrate Judge Brian A. Tsuchida issued a Report and
Recommendation (“R&R”) recommending that the
Court dismiss this matter without prejudice and deny
Plaintiff's motion for preliminary injunction. Dkt. #7.
Plaintiff filed his Objections to the R&R on May 1, 2019.
alleges that Defendants violated his constitutional rights
during his imprisonment at the MCC by scheduling and imposing
sanctions that “prohibited him from having books,
photographs and publications, ” as well as restrictions
on library access, telephone use, and visitation. Dkt. #5 at
3-4. The sanctions were scheduled to run consecutively from
April 1, 2018 through the year 2022. Id. Plaintiff
claims that defendant Deshev approved the sanctions,
defendant Caraway authorized them, and defendant Jackson did
not respond to Plaintiff's kite-a message system that
allows an inmate's written note to be sent to a
Corrections Counselor or Community Corrections Officer. On
April 19, 2019, Plaintiff filed a motion for preliminary
injunction requesting that this Court order the MCC to return
to Plaintiff a manila envelope with documentary materials
related to this action. Dkt. #6.
Court has reviewed Plaintiff's Complaint, the Report and
Recommendation of the Honorable Brian A. Tsuchida, United
States Magistrate Judge, Plaintiff's Objections thereto,
and the remaining record. The Court agrees with the
R&R's conclusion that Plaintiff was required to
exhaust his administrative remedies pursuant to the Prison
Litigation Reform Act of 1995 and failed to do so.
Accordingly, his complaint should be dismissed without
a prisoner may bring a federal lawsuit under section 1983,
the Prison Litigation Reform Act of 1995 (“PLRA”)
requires that he exhaust all available administrative
remedies. Albino v. Baca, 747 F.3d 1162, 1165 (9th
Cir. 2014) (en banc) (citing 42 U.S.C. § 1997e(a)). The
Prison Litigation Reform Act of 1995 provides as follows:
No 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) (2000 ed.) (emphasis added). Claims
that are not exhausted under the PLRA must be dismissed.
McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.
Eckard contends that he is exempt from the PLRA's
exhaustion requirement, arguing that administrative remedies
were unavailable because of his transfer on September 4, 2018
to the Snohomish County Jail:
Plaintiff Eckard was released from prison on September 4,
2019 [sic]. As a result no administrative remedies are
available to him and as such he is not subject to the
exhaustion rule of Section 1997e(a).
the exhaustion requirement is not rendered obsolete strictly
because of a prisoner's transfer to another correctional
facility. May v. Snaza, No. C14-5695 RBL-KLS, 2014
WL 5605061, at *3 (W.D. Wash. Nov. 4, 2014) (prisoner's
transfer from Thurston County Jail to Lewis County Jail does
not exempt Plaintiff from exhaustion requirement prior to
bringing suit). See also Medina Claudio v.
Rodriguez-Mateo, 292 F.3d 31, 35 (1st Cir. 2002)
(“The fact that [plaintiff] happened to be a prisoner
in various locations, and under the custody of different
officials, does not affect his obligation to exhaust his
administrative remedies before filing suit.”).
Meier v. Correct Care Sols., No. C17-5248 BHS-TLF,
2018 WL 3532921 (W.D. Wash. July 23, 2018) (transfer from
Clark County Jail to Washington Department of Corrections
Custody did not affect prisoner's obligation to exhaust
in certain situations, courts acknowledge that a
prisoner's transfer precludes him from exhausting his
administrative remedies. Such instances involve plaintiffs
transferred shortly after the alleged grievance occurred.
See King v. Coleman (2007) (plaintiff was in county
custody only for van ride before transfer to Department of
Corrections); see also Bradley v. Washington, 441
F.Supp.2d 97 (D.D.C. 2006) (transfer occurred less than a
month following the alleged incidents).
Plaintiff's alleged grievance occurred at least five
months before his transfer out of the MCC. Plaintiff objects
to the R&R on the basis that he cannot exhaust his
administrative remedies, given that only prisoners in custody
of Washington Department of Corrections may use the MCC's
grievance procedure. Dkt. #8 at 3. He directs the Court to
the Washington Offender Grievance Program Manual
(“OGPM”), the Washington Department of
Correction's administrative scheme for resolution of
inmate grievances. See id. Yet the OGPM clarifies
that the routine grievance policy “should be completed
within 90 working days, ” with an initial response to
an offender's complaint provided “within 5 working
days of the date of receipt.” OGPM at 20. Plaintiff
states that he attempted to resolve the issue with defendant
Jackson through sending a kite but received no response. Dkt.
#5 at 4. Plaintiff provides no indication of any other action
taken to pursue his grievance in the several months before
the Court finds that the PLRA exhaustion requirement applies
to Plaintiff, and Plaintiff failed to exhaust his
administrative remedies. The Court dismisses Plaintiff's
complaint without prejudice. Plaintiff also filed a motion
for preliminary injunction in this case requesting the Court
to order the return of property with evidence in support of
the claim filed in this action. Dkt. #6. ...