(PC) Jones v. Perez

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA RAYMOND JONES, Case No. 1:19-cv-01553-JLT (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE 13 v. TO EXHAUST ADMINISTRATIVE REMEDIES PEREZ, et al., (Doc. 1) 15 Defendants. 21-DAY DEADLINE 17 Plaintiff Raymond Jones, a state prisoner, filed this civil rights action pursuant to 42 18 U.S.C. section 1983. The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect to prison conditions under section 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). Prisoners are required to exhaust available administrative remedies prior to filing suit, Jones v. Bock, 549 U.S. 199, 211 (2007) (citation omitted), and courts must dismiss an action where the prisoner has failed to exhaust. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 U.S. 731, 740-41 (2001), and applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002).

28 /// 1 The California Department of Corrections and Rehabilitation (“CDCR”) has an administrative grievance system for prisoners to appeal a departmental decision, action, condition, or policy having an adverse effect on prisoner welfare. Cal. Code Regs., tit. 15, § 3084.1. Compliance with section 1997e(a) requires California state prisoners to use CDCR’s grievance process to exhaust their claims before filing suit. See Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010); see also Woodford v. Ngo, 548 U.S. 81, 85-86 (2006).

7 Plaintiff alleges that the defendants retaliated against him and subjected him to cruel and unusual punishment. (Doc. 1 at 3-5, 7-8.) In his complaint, Plaintiff states that “[n]o administrative appeal process is available and no adequate remedy [is] available.” (Id. at 3.)

10 However, he provides no basis in law or fact for this conclusion. As described above, CDCR does have an administrative appeal process; and, exhaustion is required regardless of the relief offered.

12 It appears that Plaintiff filed suit without exhausting this process, in violation of section 1997e(a).

13 See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (9th Cir. 2014) (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal, so long as no exception applies.”), overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 1169.

16 Accordingly, within 21 days, Plaintiff SHALL show cause in writing why this action should not be dismissed, without prejudice, for his failure to exhaust administrative remedies prior to filing suit. Plaintiff is advised that failure to timely respond to this order will result in dismissal of this action for Plaintiff's failure to obey a court order.

21 IT IS SO ORDERED.

22 Dated: November 12, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE