1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MAJOR MACK, 7 Case No. 22-cv-00775-YGR (PR) Plaintiff, 8 ORDER OF DISMISSAL WITHOUT v. PREJUDICE 9 SAN MATEO COUNTY, et al., 10 Defendants. 11

12 Plaintiff, an inmate at Maguire Correctional Facility, filed a pro se civil rights complaint 13 pursuant to

. On April 25, 2022, the Court reviewed Plaintiff’s complaint and 14 ordered him to show cause within twenty-eight days why this action should not be dismissed 15 without prejudice for failure to exhaust administrative remedies. Dkt. 8 at 2-3. Plaintiff was 16 warned that the “[f]ailure to reply will result in dismissal without prejudice.”

. The 17 twenty-eight-day deadline has passed, and Plaintiff has failed to file a timely response to the order 18 to show cause. As Plaintiff has not shown that he exhausted his administrative remedies prior to 19 filing suit, the Court DISMISSES this action without prejudice. 20 The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide that 21 “[n]o action shall be brought with respect to prison conditions under [

], or any 22 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 23 such administrative remedies as are available are exhausted.” Compliance with the exhaustion 24 requirement is mandatory. See Porter v. Nussle,

(2002); Booth v. Churner, 532

, 739-40 & n.5 (2001). The administrative remedies need not meet federal standards, nor 26 need they be “plain, speedy and effective.” Porter,

. 27 Although non-exhaustion under Section 1997e(a) is an affirmative defense, a prisoner’s 1 1108, 1119-20 (9th Cir. 2003) (prisoner’s concession to non-exhaustion is valid ground for 2 || dismissal, as long as no exception to exhaustion applies), overruled on other grounds in Albino vy. 3 Baca,

(9th Cir. 2014). Accordingly, a claim may be dismissed without 4 || prejudice if it is clear from the record that the prisoner concedes that he did not exhaust 5 administrative remedies. See

The Ninth Circuit has interpreted Section 1997e(a) to mean that 6 an action must be dismissed unless the prisoner exhausted his available administrative remedies 7 before he or she filed suit, even if the prisoner fully exhausts while the suit is pending. See 8 McKinney v. Carey,

(9th Cir. 2002). 9 It is obvious from the face of Plaintiffs complaint that he did not exhaust his 10 administrative remedies before filing the instant suit. See Dkt. 1 at 2.! Because Plaintiff has not 11 filed a response to the order to show cause, he has failed to provide a sufficient reason to excuse 12 administrative exhaustion. Unfortunately for Plaintiff, he has not satisfied the exhaustion 13 requirement under McKinney. Because Plaintiff did not exhaust his claims prior to filing this 14 action, this action is DISMISSED without prejudice to re-filing his claim in a new case. See 15 McKinney,

. 16 The Clerk of the Court shall close the file. IT IS SO ORDERED. 18 || Dated: June 3, 2022 19 ates fy alr lo. □ 0 ig E eae i EZ ROGERS United States District Judge 21 22 23 24 25 26 27 28 ' Page number citations refer to those assigned by the Court’s electronic case management filing system and not those assigned by plaintiff.