01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

1

 The record reflects that the service packet mailed to Officer Burns was returned to the

Court. (See Dkt. No. 12.) Defendants’ motion papers indicate that Snohomish County

REPORT AND RECOMMENDATION

PAGE -1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

EDWARD D. BLAND, JR.,

Plaintiff,

v.

SNOHOMISH COUNTY, et al.,

Defendants.

____________________________________

)

)

)

)

)

)

)

)

)

)

CASE NO. C06-0980-TSZ

REPORT AND RECOMMENDATION

INTRODUCTION AND SUMMARY CONCLUSION

This is a civil rights action brought under 42 U.S.C. § 1983. Plaintiff alleges in his

amended complaint that two corrections officers at the Snohomish County Jail employed excessive

and unnecessary force against him in April 2006, causing him physical injury. Plaintiff identifies

as defendants in his amended complaint the County of Snohomish, Officer Larkin, Officer Burns,

and a number of “Doe” defendants who have never been identified. Plaintiff seeks monetary

damages. Defendant Snohomish County and defendant Larkin now move for summary judgment. 1

Case 2:06-cv-00980-TSZ Document 26 Filed 07/16/07 Page 1 of 4
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

Corrections does not employ an “Officer Burns,” and has not employed an “Officer Burns” in the

past five years. (See Dkt. No. 21 at 2.) As the defendant identified by plaintiff as “Officer Burns”

has never been served in this action, and apparently does not even exist, all claims against this

defendant are properly dismissed.

2

 Defendants represent to the Court in their motion papers that they attempted to serve

their motion papers on plaintiff by mailing them to him at the address of record with this Court,

but the documents were returned with a notation indicating that plaintiff had moved and that the

Postal Service was unable to forward the mail. (See Dkt. No. 25.)

REPORT AND RECOMMENDATION

PAGE -2

Plaintiff has not been served with defendants’ motion papers because the motion papers

mailed to plaintiff were returned.2

 Plaintiff therefore has not had an opportunity to respond to

defendants’ motion. This missed opportunity appears to be a result of plaintiff’s own failure to

comply with the rules of this Court which require a party proceeding pro se to keep the Court and

opposing parties advised as to his current address. See Local Rule CR 41(b). Accordingly, this

Court will proceed to disposition of defendants’ summary judgment motion.

This Court, having reviewed defendants’ motion, and the balance of the record, concludes

that defendants’ motion for summary judgment should be granted to the extent it seeks dismissal

of plaintiff’s amended complaint based upon plaintiff’s failure to exhaust his administrative

remedies.

DISCUSSION

Defendants argue in their motion for summary judgment that this action should be

dismissed because plaintiff failed to exhaust his administrative remedies under 42 U.S.C. §

1997e(a). Section 1997e(a) provides 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

Case 2:06-cv-00980-TSZ Document 26 Filed 07/16/07 Page 2 of 4
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

REPORT AND RECOMMENDATION

PAGE -3

exhausted.” 42 U.S.C. § 1997e(a).

Section 1997e(a) requires complete exhaustion through any available process. See Porter

v. Nussle 534 U.S. 516, 524 (2002) (“All ‘available’ remedies must now be exhausted.”); Booth

v. Churner, 532 U.S. 731, 735 (2001). Section 1997e(a) also requires proper exhaustion.

Woodford v. Ngo, 126 S. Ct. 2378, 2387 (2006). “Proper” exhaustion means full compliance by

a prisoner with all procedural requirements of an institution’s grievance process. See id. at 2387-

88. If administrative remedies have not been exhausted at the time an action is brought, it must

be dismissed without prejudice. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002)(per

curiam).

Defendants assert that Snohomish County Corrections has an established administrative

grievance process, but that plaintiff failed to utilize that process. Defendants have offered the

declaration of David Oster, the Classification Supervisor for Snohomish County Corrections, to

support this assertion. ( See Dkt. No. 23.) In his declaration, Mr. Oster briefly describes the

grievance process and identifies the types of issues which are grievable through that process. (Id.)

Mr. Oster also indicates that plaintiff never submitted a single grievance related to the claims

asserted in his amended complaint.

As the record indicates that there was an institutional grievance process available to

plaintiff during the course of his incarceration at the Snohomish County Jail, and that plaintiff

failed to make use of that process, this Court must conclude that plaintiff failed to properly

exhaust the claims asserted in his amended complaint.

CONCLUSION

Based on the foregoing, this Court recommends that defendants’ motion for summary

Case 2:06-cv-00980-TSZ Document 26 Filed 07/16/07 Page 3 of 4
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

REPORT AND RECOMMENDATION

PAGE -4

judgment be granted to the extent it seeks dismissal of plaintiff’s amended complaint based upon

plaintiff’s failure to exhaust his administrative remedies. This Court further recommends that

plaintiff’s amended complaint, and this action, be dismissed without prejudice. A proposed order

accompanies this Report and Recommendation.

DATED this 13th day of July, 2007.

A

Mary Alice Theiler

United States Magistrate Judge

Case 2:06-cv-00980-TSZ Document 26 Filed 07/16/07 Page 4 of 4