(PC) Brummett v. Lopez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN RAY BRUMMETT, JR., Case No. 1:20-cv-00194-SKO (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED WITHOUT 13 v. PREJUDICE FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 14 D. LOPEZ, 21-DAY DEADLINE 15 Defendant. 16 17 Melvin Ray Brummett, Jr., initiated this action on February 6, 2020. (Doc. 1.) Plaintiff 18 alleges that Correctional Lieutenant D. Lopez has subjected him to retaliation for filing inmate 19 grievances. (Id.) Plaintiff states that he filed a staff complaint against Defendant on January 19, 20 2020, and that he plans to file “another retaliation claim when the [s]taff [c]omplaint is 21 exhausted.” (Id. at 9.) 22 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 23 respect to prison conditions under … any other Federal law … by a prisoner confined in any jail, 24 prison, or other correctional facility until such administrative remedies as are available are 25 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 26 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 27 omitted). Inmates are required to “complete the administrative review process in accordance with 28 the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 1 court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies to all 2 inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the 3 relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 U.S. 4 731, 741 (2001). Generally, failure to exhaust is an affirmative defense that the defendant must 5 plead and prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to 6 exhaust is clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 7 2014). 8 Based on his statements about his staff complaint against Defendant, it appears that 9 Plaintiff may not have exhausted his administrative remedies with respect to the claims 10 underlying this action prior to filing suit. Although Plaintiff raises serious allegations that, if 11 proven, would entitle him to relief, exhaustion is mandatory under the PLRA and “unexhausted 12 claims cannot be brought in court.” Jones, 549 U.S. at 211 (citation omitted). 13 Accordingly, the Court ORDERS Plaintiff, within 21 days, to show cause in writing why 14 this action should not be dismissed without prejudice for failure to exhaust administrative 15 remedies prior to filing suit. Alternatively, Plaintiff may file a notice of voluntary dismissal. 16 Plaintiff is advised that failure to timely respond to this order will result in dismissal of this 17 action with prejudice for failure to obey a court order. 18 IT IS SO ORDERED. 19 Sheila K. Oberto 20 Dated: May 4, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28