(PC)Zinman v. Cogburn

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA JUSTIN MARCUS ZINMAN, Case No. 1:24-cv-01320-CDB (PC) 12 Plaintiff, ORDER TO SHOW CAUSE IN WRITING 13 v. WITHIN 30 DAYS WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO R. COGBURN, EXHAUST ADMINISTRATIVE REMEDIES 15 Defendant.

ORDER TO SUBMIT APPLICATION TO 16 PROCEED IN FORMA PAUPERIS OR PAY FILING FEE WITHIN 45 DAYS 18 Clerk of the Court to Attach IFP Application Background 20 Plaintiff Justin Marcus Zinman is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint with this Court on October 28, 2024.

22 (Doc. 1).

23 Plaintiff has not paid the $405.00 filing fee or submitted an application to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. Accordingly, the Court will direct Plaintiff to pay the filing fee in full or submit an IFP application.

26 Furthermore, a brief review of the complaint reveals the incident giving rise to Plaintiff’s claims occurred on September 27, 2024. (Id. at 7). In his complaint, Plaintiff attests that his “claims have not been formally exhausted because . . .there is no form of administrative relief possible in this matter[,] [Plaintiff] personally attempted to resolve this situation twice which proved to be the most amount of due diligence possible outside of Court[, and] this situation involves the threat of imminent health complications to [Plaintiff].” (Id. at 1:23–29). Nevertheless, Plaintiff has not shown he has exhausted his administrative remedies between September 27, 2024—the date of the subject incident—and October 28, 2024, the date he filed his complaint.

7 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with respect to prison conditions under . . . 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). Exhaustion of administrative remedies is mandatory and “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation omitted). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001).

15 Inmates are required to “complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.”

17 Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). In California, state-inmate grievances are subject to two levels of review. See Cal. Code Regs. tit. 15, §§ 3481(a), 3999.226(a)(1). Prisoners must generally receive a disposition from the second level of review before administrative remedies are deemed exhausted. See id. §§ 3483(m)(1), 3486(m), 3999.226(h); but see id. § 3483(m)(2).

21 In general, failure to exhaust is an affirmative defense that the defendant must plead and prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014).

24 Here, it appears clear on the face of his complaint that Plaintiff has failed to exhaust administrative remedies prior to filing suit. Although Plaintiff assert that “no form of administrative relief [is] possible in this matter,” that is not a proper basis to fail to pursue administrative remedies.

28 Accordingly, the Court will direct Plaintiff to make a written filing in which he sets forth | the reasons by this Court should not dismiss this action for his failure to exhaust administrative | remedies.

3 | Conclusion and Order 4 Accordingly, it is HEREBY ORDERED: 5 1. Within 30 days of the date of this Order, Plaintiff shall show cause in writing why | this action should not be dismissed for his failure to exhaust. Alternatively, Plaintiff may file a | notice of voluntary dismissal; and 8 2. Within 45 days of the date of this Order, Plaintiff shall submit the attached | application to proceed in forma pauperis, completed and signed, or in the alternative, pay the | $405.00 filing fee for this action.

11 No requests for extension will be granted without a showing of good cause. Failure to | comply with this order will result in a recommendation that this action be dismissed.

13 | IT IS SO ORDERED.

Dated: _ November 6, 2024 | Vv Vv RR 15 UNITED STATES MAGISTRATE JUDGE