(PC) Smith v. Municipality of Fresno County ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GARY PAUL SMITH, Case No. 1:19-cv-00651-EPG 12 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE 13 WHY THIS ACTION SHOULD NOT BE v. DISMISSED WITHOUT PREJUDICE FOR 14 FAILURE TO EXHAUST MUNICIPALITY OF FRESNO COUNTY, et al., 15 THIRTY-DAY DEADLINE Defendants. 16 17 Gary Paul Smith (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 18 action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on May 19 14, 2019. (ECF No. 1.) Plaintiff filed a First Amended Complaint on June 10, 2019. (ECF No. 6.) 20 It appears from the face of the First Amended Complaint that Plaintiff did not exhaust his 21 available administrative remedies before filing this action. Plaintiff appears to admit that the 22 grievance process was available to him, but that he did not complete the process. (ECF No. 6, p. 23 2.) 24 Accordingly, the Court will order Plaintiff to file a response within thirty days, explaining 25 why this action should not be dismissed for failure to exhaust available administrative remedies. 26 Such a dismissal would be without prejudice, so that Plaintiff may be able to refile the action after 27 exhausting administrative remedies, to the extent those remedies are still available to him. 28 1 I. LEGAL STANDARDS 2 “The California prison grievance system has three levels of review; an inmate exhausts 3 administrative remedies by obtaining a decision at each level.” Reyes v. Smith, 810 F.3d 654, 4 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b) (2011) & Harvey v. Jordan, 605 5 F.3d 681, 683 (9th Cir. 2010)). See also Cal. Code Regs. tit. 15, § 3084.7(d)(3) (“The third level 6 review constitutes the decision of the Secretary of the California Department of Corrections and 7 Rehabilitation on an appeal, and shall be conducted by a designated representative under the 8 supervision of the third level Appeals Chief or equivalent. The third level of review exhausts 9 administrative remedies….”). 10 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 11 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. ' 1983], or any 12 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 13 such administrative remedies as are available are exhausted.” 42 U.S.C. ' 1997e(a). 14 Prisoners are required to exhaust the available administrative remedies prior to filing suit. 15 Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th 16 Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating to 17 prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of the 18 relief sought by the prisoner and regardless of the relief offered by the process, unless “the 19 relevant administrative procedure lacks authority to provide any relief or to take any action 20 whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); Ross 21 v. Blake, 136 S.Ct. 1850, 1857, 1859 (2016). 22 “Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong for 23 which redress is sought. The grievance need not include legal terminology or legal theories, 24 because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its 25 resolution, not to lay groundwork for litigation. The grievance process is only required to alert 26 prison officials to a problem, not to provide personal notice to a particular official that he may be 27 sued.” Reyes, 810 F.3d at 659 (alteration in original) (citations and internal quotation marks 28 o mitted). 1 As discussed in Ross, 136 S.Ct. at 1862, there are no “special circumstances” exceptions 2 to the exhaustion requirement. The one significant qualifier is that “the remedies must indeed be 3 ‘available’ to the prisoner.” Id. at 1856. The Ross Court described this qualification as follows: 4 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a 5 simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. See 532 U.S., at 736, 738, 6 121 S.Ct. 1819. . . . 7 Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. . . . 8 9 And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process through 10 machination, misrepresentation, or intimidation. . . . As all those courts have recognized, such interference with an inmate's pursuit 11 of relief renders the administrative process unavailable. And then, once again, § 1997e(a) poses no bar. 12 13 Id. at 1859–60. 14 “When prison officials improperly fail to process a prisoner's grievance, the prisoner is 15 deemed to have exhausted available administrative remedies.” Andres v. Marshall, 867 F.3d 16 1076, 1079 (9th Cir. 2017). 17 If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal 18 without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S. at 19 223–24; Lira v. Herrera, 427 F.3d 1164, 1175–76 (9th Cir. 2005). 20 II. ANALYSIS 21 Plaintiff appears to admit that the grievance process was available to him, but that he did 22 not complete the process. (ECF No. 6, p. 2.) Thus, it appears from the face of the complaint that 23 Plaintiff did not exhaust his available administrative remedies before filing this action. 24 Accordingly, the Court will order Plaintiff to show cause why this action should not be dismissed 25 for failure to exhaust available administrative remedies. The Court notes that this dismissal 26 would be without prejudice. Therefore, if Plaintiff exhausts his administrative remedies in the 27 future, he could refile the complaint. 28 The Court also welcomes Plaintiff to file any documents he believes demonstrates that he 1 | has exhausted all available administrative remedies. 2 I. CONCLUSION AND ORDER TO SHOW CAUSE 3 Accordingly, it is HEREBY ORDERED that, within thirty (30) days from the date of 4 | service of this order, Plaintiff shall show cause why this action should not be dismissed, without 5 | prejudice, for failure to exhaust available administrative remedies. Plaintiff's response may also 6 || contain any documents Plaintiff believes are responsive to the exhaustion issue. If Plaintiff fails 7 | to file a response the Court may recommend to a district judge that Plaintiffs complaint be 8 | dismissed without prejudice for failure to exhaust administrative remedies. Again, if □□□□□□□□□□□ 9 | case is dismissed for failure to exhaust administrative remedies, Plaintiff may refile the complaint 10 | after he has exhausted administrative remedies to the extent those remedies are still available to 11 | him. 12 13 IT IS SO ORDERED. 14 | Dated: _ September 27, 2019 [sf hey 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28