1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DANIEL SILVA, Case No. 22-cv-02348-JSW

8 Plaintiff, ORDER OF DISMISSAL v. 9

10 CONTRA COSTA COUNTY SHERIFF'S DEPARTMENT, 11 Defendant.

12 13 INTRODUCTION 14 Plaintiff, an inmate at the San Francisco County Jail, is proceeding pro se and has filed a 15 civil rights complaint under

. He is granted leave to proceed in forma pauperis in 16 a separate order. For the reasons discussed below, the case is DISMISSED without prejudice for 17 failure to exhaust his administrative remedies. 18 STANDARD OF REVIEW 19 Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 21 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 22 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 23 monetary relief from a defendant who is immune from such relief.

at 1915A(b)(1),(2). Pro se 24 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't,

(9th 25 Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 27 claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the 1 which it rests."'" Erickson v. Pardus,

(2007) (citations omitted). Although 2 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 3 obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and 4 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 5 Factual allegations must be enough to raise a right to relief above the speculative level." Bell 6 Atlantic Corp. v. Twombly,

(2007) (citations omitted). A complaint 7 must proffer "enough facts to state a claim for relief that is plausible on its face."

. 8 To state a claim under

, a plaintiff must allege two essential elements: (1) 9 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 10 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 11

(1988). 12 DISCUSSION 13 Plaintiff has indicated in his Complaint that he has not exhausted his administrative 14 remedies. (ECF No. 1 at 2.) “No action shall be brought with respect to prison conditions under 15 [

], or any other Federal law, by a prisoner confined in any jail, prison, or other 16 correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. 17 § 1997e(a). Failure to exhaust under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) 18 (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 20 exhausted, however, the complaint may be dismissed for failure to state a cognizable claim for 21 relief. Albino v. Baca,

(9th Cir. 2014) (en banc). As plaintiff makes it clear 22 on the face of his Complaint that he has not exhausted his claims, the case must be dismissed. 23 Plaintiff states one word --- “unaware” --- to explain why he did not exhaust his claim. 24 (ECF No. 1 at 2.) Exhaustion is mandatory and not left to the discretion of the district court. 25 Woodford v. Ngo,

(2006) (citing Booth v. Churner,

(2001)). 26 Courts may not create their own “special circumstances” exceptions to the exhaustion 27 requirement. Ross v. Blake,

(2016) (reversing Fourth Circuit’s ruling that 1 had exhausted remedies). There is no authority for the proposition that a lack of awareness of the 2 || exhaustion requirement excuses a prisoner’s statutory obligation to exhaust. Under Woodford, this 3 Court does not have the authority to create an exception to the exhaustion requirement based on 4 || Plaintiff's lack of awareness. 5 CONCLUSION 6 For the foregoing reasons, the case is DISMISSED for failure to exhaust administrative 7 || remedies. The dismissal is without prejudice to Plaintiff filing his claims in a new action after he 8 || has satisfied the exhaustion requirement. 9 The Clerk shall enter judgment and close the file. 10 IT IS SO ORDERED. 11 Dated: June 2, 2022 g 2B CL, ke 13 f F 7 ;EFFREY |S. WHITE 14 (snip States istrict Judge fy po 15 ve 16

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