(PC) Smith v. Petrey ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEL LAMONT SMITH, Case No. 1:19-cv-01169-EPG (PC) 12 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE 13 v. WHY THIS ACTION SHOULD NOT BE DISMISSED WITHOUT PREJUDICE FOR 14 KYLE PETREY, et al., FAILURE TO EXHAUST Defendants. 15 THIRTY-DAY DEADLINE 16 17 18 Del Lamont Smith (“Plaintiff”) is proceeding pro se and in forma pauperis in this action 19 filed on August 21, 2019. Magistrate Judge Stanley A. Boone screened the complaint, found that 20 it failed to state a cognizable claim for relief, and gave leave to amend on February 19, 2020. 21 (ECF No. 16). The case was reassigned to the undersigned magistrate judge on March 19, 2020. 22 (ECF No. 17). Before the Court is Plaintiff’s First Amended Complaint, filed March 25, 2020. 23 (ECF No. 18). 24 It appears from the face of the First Amended Complaint that Plaintiff did not exhaust his 25 available administrative remedies before filing this action. Plaintiff appears to admit the 26 administrative process was available, and that his appeal to the third level was denied due to time 27 constraints. (Id. at 4). 28 Accordingly, the Court will order Plaintiff to file a response within thirty days, explaining 1 why this action should not be dismissed for failure to exhaust available administrative remedies. 2 Such a dismissal would be without prejudice, so that Plaintiff may be able to refile the action after 3 exhausting administrative remedies, to the extent those remedies are still available to him. 4 I. LEGAL STANDARDS 5 “The California prison grievance system has three levels of review; an inmate exhausts 6 administrative remedies by obtaining a decision at each level.” Reyes v. Smith, 810 F.3d 654, 7 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b) (2011) & Harvey v. Jordan, 605 8 F.3d 681, 683 (9th Cir. 2010)). See also Cal. Code Regs. tit. 15, § 3084.7(d)(3) (“The third level 9 review constitutes the decision of the Secretary of the California Department of Corrections and 10 Rehabilitation on an appeal, and shall be conducted by a designated representative under the 11 supervision of the third level Appeals Chief or equivalent. The third level of review exhausts 12 administrative remedies….”). 13 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 14 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 15 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 16 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 17 Prisoners are required to exhaust the available administrative remedies prior to filing suit. 18 Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th 19 Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating to 20 prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of the 21 relief sought by the prisoner and regardless of the relief offered by the process, unless “the 22 relevant administrative procedure lacks authority to provide any relief or to take any action 23 whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); Ross 24 v. Blake, 136 S.Ct. 1850, 1857, 1859 (2016). 25 “Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong for 26 which redress is sought. The grievance need not include legal terminology or legal theories, 27 because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its 28 resolution, not to lay groundwork for litigation. The grievance process is only required to alert 1 prison officials to a problem, not to provide personal notice to a particular official that he may be 2 sued.” Reyes, 810 F.3d at 659 (alteration in original) (citations and internal quotation marks 3 omitted). 4 As discussed in Ross, 136 S.Ct. at 1862, there are no “special circumstances” exceptions 5 to the exhaustion requirement. The one significant qualifier is that “the remedies must indeed be 6 ‘available’ to the prisoner.” Id. at 1856. The Ross Court described this qualification as follows: 7 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a 8 simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. See 532 U.S., at 736, 738, 9 121 S.Ct. 1819…. 10 Next, an administrative scheme might be so opaque that it becomes, 11 practically speaking, incapable of use…. 12 And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process through 13 machination, misrepresentation, or intimidation…. As all those courts have recognized, such interference with an inmate's pursuit 14 of relief renders the administrative process unavailable. And then, once again, § 1997e(a) poses no bar. 15 Id. at 1859–60. 16 “When prison officials improperly fail to process a prisoner’s grievance, the prisoner is 17 deemed to have exhausted available administrative remedies.” Andres v. Marshall, 867 F.3d 18 1076, 1079 (9th Cir. 2017). 19 If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal 20 without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S. at 21 223–24; Lira v. Herrera, 427 F.3d 1164, 1175–76 (9th Cir. 2005). 22 When it is clear on the face of the complaint that a plaintiff failed to exhaust 23 administrative remedies, dismissal is proper. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 24 2014). 25 II. ANALYSIS 26 It appears from the face of the Plaintiff’s First Amended Complaint that Plaintiff did not 27 exhaust his available administrative remedies before filing this action. Plaintiff’s First Amended 28 wOow 4:40 UV VEER NS MMO APR a Ee AY 1 | Complaint states that there is an inmate appeal or administrative remedy process available at his 2 | institution. (ECF No. 18, p. 4). It further states, “3rd level denied the 602 due to time constraint 3 | issues.” (Id.). Plaintiff's original complaint similarly explained regarding the “third formal 4 | level”: “SCC-X-18-01806, Feb 25th, 2109, rejected, then later cancelled due to time restraint. 5 | SCC-X-18-01387, 4-22-2019: cancelled.” (ECF No. 1, p. 2). 6 Accordingly, the Court will order Plaintiff to show cause why this action should not be 7 || dismissed for failure to exhaust available administrative remedies. The Court notes that this 8 | dismissal would be without prejudice. Therefore, if Plaintiff exhausts his administrative remedies 9 | in the future, he could refile the complaint. 10 The Court also welcomes Plaintiff to file any documents he believes demonstrates that he 11 | has exhausted all available administrative remedies. 12 I. CONCLUSION AND ORDER TO SHOW CAUSE 13 Accordingly, it is HEREBY ORDERED that, within thirty (30) days from the date of 14 | service of this order, Plaintiff shall show cause why this action should not be dismissed, without 15 | prejudice, for failure to exhaust available administrative remedies. Plaintiff's response may also 16 | contain any documents Plaintiff believes are responsive to the exhaustion issue. If Plaintiff fails 17 | to file a response the Court may recommend to a district judge that Plaintiff's complaint be 18 | dismissed without prejudice for failure to exhaust administrative remedies. Again, if □□□□□□□□□□□ 19 | case is dismissed for failure to exhaust administrative remedies, Plaintiff may refile the complaint 20 | after he has exhausted administrative remedies to the extent those remedies are still available to 21 | him. 22 23 | IT IS □□ ORDERED. 24 yg | Dated: _April 17, 2020 [see hey — UNITED STATES MAGISTRATE JUDGE 26 27 28