1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 LAUSTEVEION JOHNSON, Case No. 3:22-cv-00347-ART-CLB

5 Plaintiff, ORDER v. 6 NDOC, et al., 7 Defendants. 8 9 Plaintiff, who is incarcerated in the custody of the Nevada Department of 10 Corrections (“NDOC”), has submitted a civil rights complaint pursuant to

1983. (ECF Nos. 1-1). The Court notes a potential exhaustion issue. 12 Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with 13 respect to prison conditions under [

], or any other Federal law, by a 14 prisoner confined in any jail, prison, or other correctional facility until such administrative 15 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion 16 requirement is mandatory and unexhausted claims cannot be brought in court. Booth v. 17 Churner,

(2001); Jones v. Bock,

(2007). 18 “In a few cases, a prisoner’s failure to exhaust may be clear from the face of the 19 complaint. However, such cases will be rare because a plaintiff is not required to say 20 anything about exhaustion in his complaint.” Albino v. Baca,

(9th 21 Cir. 2014). The “failure to exhaust is an affirmative defense under the PLRA” and 22 “inmates are not required to specially plead or demonstrate exhaustion in their 23 complaints.” Jones,

. However, if it later comes to light that the plaintiff 24 failed to exhaust his administrative remedies on the claims raised in the complaint, the 25 district court will dismiss the unexhausted claims from the case.

(holding 26 that the district court may dismiss the unexhausted claims from the complaint but may 27 proceed with the exhausted claims). The plaintiff must exhaust his or her claims before filing a lawsuit and cannot finish the exhaustion process during the case. See McKinney 1|| v. Carey,

(9th Cir. 2002) (holding that the “district court must dismiss an action involving prison conditions when the plaintiff did not exhaust his 3|| administrative remedies prior to filing suit but [was] in the process of doing so when a 4|| motion to dismiss [was] filed”). 5 In the complaint, Plaintiff states that on July 13, 2022, he found out from his case 6|| worker that he was not receiving certain credits toward his parole eligibility. (ECF No. 1- 1 at 4.) The complaint was filed on August 2, 2022. (/d.) It seems unlikely that Plaintiff 8|| would have been able to fully exhaust his administrative remedies during that period. If Plaintiff needs to finish exhausting his administrative remedies, he may choose to file a notice of voluntary dismissal without prejudice’ by October 4, 2022. The Court notes that 11|| if Plaintiff chooses to proceed with this case, he may be required to pay the full $402 filing 12|| fee, which includes the $350 filing fee and $52 administrative fee, even if the Court later 13|| dismisses this case. 14 It is therefore ordered that, if Plaintiff chooses to file a notice of voluntary dismissal without prejudice, he may do so by October 4, 2022. If Plaintiff chooses not to voluntarily 16|| dismiss this action by that date, this case will proceed with the screening process. 17 18 DATED THIS 4th day of August 2022. 19 ‘ 20 Stole 21 22 23 24 25 26 27 1 A dismissal without prejudice means that a plaintiff does not give up the right to 28 refile the case with the Court, under a new case number, when the plaintiff has exhausted his or her administrative remedies.