(PC) Washington v. Fresno County Sheriff ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PERRY WASHINGTON, Case No. 1:19-cv-01069-NONE-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO 13 v. EXHAUST ADMINISTRATIVE REMEDIES 14 FRESNO COUNTY SHERIFF, et al., 21-DAY DEADLINE 15 Defendants. 16 17 Plaintiff Perry Washington initiated this civil rights action on August 5, 2019. (See Doc. 18 1.) Plaintiff alleges that, on July 24 and 25, 2019, sheriff’s deputies subjected him to sexual 19 assault, failed to protect him from abuse, and denied him adequate medical care. (See Doc. 19.) In 20 its first screening order, the Court informed Plaintiff that he “filed suit prematurely without first 21 exhausting his administrative remedies” pursuant to the Prison Litigation Reform Act (PLRA). 22 (Doc. 13 at 6.) 23 Accordingly, on March 7, 2020, the Court issued an order to show cause why this action 24 should not be dismissed for failure to exhaust administrative remedies. (Doc. 22.) Plaintiff filed a 25 response on April 17, 2020. (Doc. 25.) In his response, Plaintiff states that, after he “filed suit on 26 August 5, 2019, [he has] since … exhausted administrative remedies.” (Id. at 2.) His grievances 27 were “not sustained.” (Id.) 28 /// 1 The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect 2 to prison conditions under … any other Federal law … by a prisoner confined in any jail, prison, 3 or other correctional facility until such administrative remedies as are available are exhausted.” 4 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and “unexhausted 5 claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007) (citation omitted). 6 Inmates are required to “complete the administrative review process in accordance with the 7 applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 8 court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies to all 9 inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the 10 relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 U.S. 11 731, 741 (2001). Generally, failure to exhaust is an affirmative defense that the defendant must 12 plead and prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to 13 exhaust is clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 14 2014). 15 Though Plaintiff’s allegations are troubling, “exhaustion is mandatory under the PLRA.” 16 Jones, 549 U.S. at 211. Exhaustion must be completed before the filing of a complaint; it cannot 17 be completed during the pendency of lawsuit. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 18 2002); cf. Rhodes v. Robinson, 621 F.3d 1002, 1005-07 (9th Cir. 2010). Thus, even though 19 Plaintiff asserts that he exhausted his remedies, because he exhausted after he filed his complaint, 20 the Court is required to dismiss this action. Dismissal will be “without prejudice,” meaning that 21 Plaintiff may file a new lawsuit based on the claims in this case. 22 Based on the foregoing, the Court RECOMMENDS that this action be DISMISSED 23 without prejudice. These Findings and Recommendations will be submitted to the United States 24 District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). 25 /// 26 /// 27 /// 28 /// 1 Within 21 days of the date of service of these Findings and Recommendations, Plaintiff 2 may file written objections with the Court. The document should be captioned, “Objections to 3 Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the 4 specified time may result in waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 5 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 IT IS SO ORDERED. 7 Sheila K. Oberto 8 Dated: April 20, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28