1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOEY L. HAINES, Case No. 23-cv-04452-AMO (PR)

8 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW CAUSE WHY HIS FEDERAL 9 v. CLAIM SHOULD NOT BE DISMISSED AS UNEXHAUSTED 10 SHERIFF SANCHEZ, et al.,

Defendants. 11

12 I. INTRODUCTION 13 This suit was reassigned from a magistrate judge to the undersigned in light of Ninth 14 Circuit authority.1 Plaintiff Joey L. Haines, who is in custody at the Santa Rita Jail (“SRJ”), filed 15 the present pro se prisoner complaint under

. 16 The Court now conducts its initial review of the complaint pursuant to 28 U.S.C. § 1915A. 17 Venue is proper because the events giving rise to Haines’s claims in his complaint are alleged to 18 have occurred at SRJ, which is located in this judicial district. See

(b). 19 II. DISCUSSION 20 A. Standard of Review 21 A federal court must engage in a preliminary screening of any case in which a prisoner 22 seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 23 U.S.C. § 1915A(a). The court must identify any cognizable claims, and dismiss any claims which 24 are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary 25 relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se 26

27 1 Williams v. King,

(9th Cir. 2017) (concluding that magistrate judge 1 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th 2 Cir. 1990). 3 The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e to 4 provide that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. 5 § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional 6 facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 7 Exhaustion is mandatory and no longer left to the discretion of the district court. Ross v. Blake, 8

(2016); Woodford v. Ngo,

(2006) (citing Booth v. 9 Churner,

(2001)). “Prisoners must now exhaust all ‘available’ remedies, not 10 just those that meet federal standards.” Id. at 85. Even when the relief sought cannot be granted 11 by the administrative process, i.e., monetary damages, a prisoner must still exhaust administrative 12 remedies. Id. at 85-86 (citing Booth,

). 13 B. Legal Claims 14 Haines alleges a claim for violations of his Eighth Amendment rights, stemming from an 15 incident on January 5, 2023 related to a claim of deliberate indifference to his safety. See Dkt. 1 at 16 2-3. However, a review of the complaint reveals that Haines has not exhausted California’s prison 17 administrative process and thus it must be dismissed. 18 The California Department of Corrections and Rehabilitation (“CDCR”) provides that 19 inmates and parolees “may appeal any policy, decision, action, condition, or omission by the 20 department or its staff that the inmate or parolee can demonstrate as having a material adverse 21 effect upon his or her health, safety, or welfare.”

(a). Section 22 1997e(a) requires “proper exhaustion” of available administrative remedies. Ngo,

. 23 A prisoner not only must pursue every available step of the prison appeal process but also must 24 adhere to “deadlines and other critical procedural rules” of that process.

. 25 Here, Haines fails to allege that he exhausted his administrative remedies for the federal 26 claims he seeks to assert. Dkt. 1 at 2-3. Specifically, he states that he received “no response” to 27 the “[s]econd formal level” of review. Id. at 2. Moreover, Haines did not attach any prison 1 admirative remedies prior to filing his suit. Furthermore, he has not presented any extraordinary 2 circumstances which might compel that he be excused from complying with PLRA’s exhaustion 3 requirement. Cf. Booth,

n.6 (courts should not read “futility or other exceptions” 4 into section 1997e(a)). 5 A prisoner must exhaust his administrative remedies for constitutional claims prior to 6 asserting them in a civil rights complaint. 42 U.S.C. § 1997e(a); McKinney v. Carey,

1198, 1199 (9th Cir. 2002). If a prisoner exhausts a claim after bringing it before the court, his 8 subsequent exhaustion cannot excuse his earlier failure to exhaust. Vaden v. Summerhill,

1047, 1051 (9th Cir. 2006) (“[A prisoner] may initiate litigation in federal court only after the 10 administrative process ends and leaves his grievances unredressed. It would be inconsistent with 11 the objectives of the statute to let him submit his complaint any earlier than that.”) When the 12 district court concludes that the prisoner has not exhausted administrative remedies on a claim, 13 “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. Terhune,

1108, 1120 (9th Cir. 2003) overruled on other grounds by Albino v. Baca,

, 1166 15 (9th Cir. 2014) (en banc). However, the Court will provide Haines one final opportunity to show 16 cause, within twenty-eight (28) days, why his federal claim should not be dismissed without 17 prejudice for failure to exhaust, as instructed below. Specifically, to avoid dismissal, Haines 18 needs to provide proof that extraordinary circumstances existed in order to excuse him from 19 complying with PLRA’s exhaustion requirement. See e.g., Ross,

-60 20 (identifying “three kinds of circumstances in which an administrative remedy, although officially 21 on the books, is not capable of use to obtain relief.”) 22 III. CONCLUSION 23 For the foregoing reasons, the Court orders as follows: 24 1. Haines will be provided one final opportunity to show cause within twenty-eight 25 (28) days, why his federal claim should not be dismissed without prejudice for failure to exhaust. 26 Failure to reply will result in dismissal without prejudice of Haines’s federal claim. 27 2. All communications by Haines with the Court must be served on the defendants’ 1 3. It is Haines’s responsibility to prosecute this case. He must keep the Court 2 || informed of any change of address and must comply with the Court’s orders in a timely fashion. 3 Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes 4 || while an action is pending must promptly file a notice of change of address specifying the new 5 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 6 || directed to the pro se party by the Court has been returned to the Court as not deliverable, and 7 (2) the Court fails to receive within sixty days of this return a written communication from the pro 8 se party indicating a current address. See L.R. 3-11(b). 9 4. Upon a showing of good cause, requests for a reasonable extension of time will be 10 || granted provided they are filed on or before the deadline they seek to extend. 11 IT IS SO ORDERED. 12 Dated: January 9, 2024

Mnacek Medel 5 ARACELI MARTINEZ-OLGUIN United States District Judge 16

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