(PC) Moore v. Dodd

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA

MARCUS J. MOORE, 1:20-cv-01321-GSA-PC Plaintiff, ORDER DISCHARGING ORDER TO SHOW 13 CAUSE v. 14 (ECF No. 6.)

MICHELE DODD, et al., Defendants.

20 Marcus J. Moore (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On September 15, 2020, Plaintiff filed the Complaint commencing this action. (ECF No. 1.)

23 On September 22, 2020, the court issued an order to show cause, requiring Plaintiff to show cause why this case should not be dismissed for failure to exhaust his administrative remedies before filing suit, as shown on the face of the Complaint. (ECF No. 6.) On October 21, 2020, Plaintiff filed a response to the court’s order asserting that he exhausted his remedies because he was given the relief he asked for and went to the highest level he could. (ECF No. 9.)

1 While this order is not a finding that Plaintiff has exhausted all of his available administrative remedies for the claims in this case prior to filing suit, the court does finds that Plaintiff’s failure to exhaust remedies is no longer clear on the face of the Complaint and therefore the court shall not resolve this issue at this stage of the proceedings. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (where failure to exhaust is clear from face of complaint, case is subject to dismissal for failure to state a claim under Rule 12(b(6)); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal. . . .”) (overruled on other grounds by Albino, 747 F.3d at 1168-69).

9 Accordingly, the court’s order to show cause, issued on September 22, 2020, shall be discharged.

10 Based on the foregoing, IT IS HEREBY ORDERED that: 11 1. The court’s order to show cause, issued on September 22, 2020, is 12 DISCHARGED; and 13 2. The court shall screen Plaintiff’s Complaint in due course.

IT IS SO ORDERED.

16 Dated: October 25, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE