1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DEVIN LUM, Case No. 22-cv-00774-JSW

8 Plaintiff, ORDER OF DISMISSAL v. 9

10 CARLOS G. BOLANOS, et al., Defendants. 11

12 INTRODUCTION 13 Plaintiff, an inmate at the San Mateo County Jail, is proceeding pro se and has filed a civil 14 rights complaint under

. He is granted leave to proceed in forma pauperis in a 15 separate order. For the reasons discussed below, the case is DISMISSED without prejudice for 16 failure to exhaust his administrative remedies. 17 STANDARD OF REVIEW 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 20 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 21 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 22 monetary relief from a defendant who is immune from such relief.

at 1915A(b)(1),(2). Pro se 23 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't,

(9th 24 Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 26 claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the 27 statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds upon 1 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 2 obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and 3 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 4 Factual allegations must be enough to raise a right to relief above the speculative level." Bell 5 Atlantic Corp. v. Twombly,

(2007) (citations omitted). A complaint 6 must proffer "enough facts to state a claim for relief that is plausible on its face."

. 7 To state a claim under

, a plaintiff must allege two essential elements: (1) 8 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 9 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 10

(1988). 11 DISCUSSION 12 Plaintiff has indicated in his Complaint that he has not exhausted his administrative 13 remedies. (ECF No. 1 at 2.) “No action shall be brought with respect to prison conditions under 14 [

], or any other Federal law, by a prisoner confined in any jail, prison, or other 15 correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. 16 § 1997e(a). Failure to exhaust under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) 17 (PLRA), is “an affirmative defense the defendant must plead and prove.” Jones v. Bock,

(2007). If a plaintiff makes it clear on the face of the complaint that they have not 19 exhausted, however, the complaint may be dismissed for failure to state a cognizable claim for 20 relief. Albino v. Baca,

(9th Cir. 2014) (en banc). As plaintiff makes it clear 21 on the face of his Complaint that he has not exhausted his claims, the case must be dismissed. 22 Plaintiff states that the reason he has not exhausted is “irreparable harm and danger.” 23 (ECF No. 1 at 2.) Exhaustion is mandatory and not left to the discretion of the district court. 24 Woodford v. Ngo,

(2006) (citing Booth v. Churner,

(2001)). 25 Courts may not create their own “special circumstances” exceptions to the exhaustion 26 requirement. Ross v. Blake,

(2016) (reversing Fourth Circuit’s ruling that 27 failure to exhaust was justified where prisoner reasonably—even though mistakenly—believed he ] danger” excuses the exhaustion requirement. Indeed, an inmate’s concerns about the safety of his 2 || institution may be addressed more rapidly via an administrative appeal to the institution’s officials 3 || than via a lawsuit in federal court. Regardless, this Court does not have the authority to create an 4 || exception to the exhaustion requirement based on Plaintiffs reasons for not exhausting. 5 6 CONCLUSION 7 For the foregoing reasons, the case is DISMISSED for failure to exhaust administrative 8 || remedies. The dismissal is without prejudice to Plaintiff filing his claims in a new action after he 9 || has satisfied the exhaustion requirement. 10 The Clerk shall enter judgment and close the file. 1] IT IS SO ORDERED. a Dated: February 28, 2022 13 “7 4 LAs AEFRREY S. WHITE Id { /Unifed State District Judge 16

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