(PC) Johnson v. California Department of Corrections and Rehabilitation ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DARRYL JOHNSON, 1:20-cv-00119-GSA-PC 10 Plaintiff, ORDER TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE DISMISSED FOR 11 vs. FAILURE TO EXHAUST REMEDIES 12 CALIFORNIA DEPARTMENT OF THIRTY-DAY DEADLINE TO RESPOND CORRECTIONS AND TO ORDER TO SHOW CAUSE 13 REHABILITATION, et al., 14 Defendants. 15 16 I. BACKGROUND 17 Darryl Johnson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 19 commencing this case on January 23, 2000. (ECF No. 1.) 20 II. EXHAUSTION OF ADMINISTRATIVE REMEDIES 21 Once within the discretion of the district court, exhaustion in cases covered by the Prison 22 Litigation Reform Act of 1995 (“PLRA”) is now mandatory. Porter v. Nussle, 534 U.S. 516, 23 524, 122 S. Ct. 983, 988, 152 L. Ed. 2d 12 (2002) (citing see Booth v. Churner, 532 U.S. 731, 24 739, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). Pursuant to the PLRA, “[n]o action shall be 25 brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by 26 a prisoner confined in any jail, prison, or other correctional facility until such administrative 27 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust 28 available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007) 1 (emphasis added); McKinney v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002) (“[T]he 2 PLRA’s exhaustion requirement does not allow a prisoner to file a complaint addressing non- 3 exhausted claims, even if the prisoner exhausts his administrative remedies while his case is 4 pending.”) Exhaustion is required regardless of the relief sought by the prisoner and regardless 5 of the relief offered by the process, Booth, 532 U.S. at 741, and the exhaustion requirement 6 applies to all suits relating to prison life, Porter, 435 U.S. at 532. 7 From the face of Plaintiff’s Complaint, it appears clear that Plaintiff filed suit 8 prematurely, THAT IS, before exhausting his administrative remedies. If so, this case must be 9 dismissed. (ECF No. 1 at 3 ¶ 5, 4 ¶ 5.) Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en 10 banc) (where failure to exhaust is clear from face of complaint, case is subject to dismissal for 11 failure to state a claim under Rule 12(b(6)); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 12 2003) (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal. . . .”) 13 (overruled on other grounds by Albino, 747 F.3d at 1168-69). Therefore, Plaintiff shall be 14 required to show cause why this case should not be dismissed, without prejudice, for failure to 15 exhaust remedies prior to filing suit. 16 III. ORDER TO SHOW CAUSE 17 In light of the foregoing, IT IS HEREBY ORDERED that: 18 1. Plaintiff is required to respond in writing to this order, within thirty (30) days of 19 the date of service of this order, showing cause why this case should not be 20 dismissed for Plaintiff’s failure to exhaust administrative remedies before filing 21 suit; and 22 3. Failure to respond to this order may result in the dismissal of this case, without 23 prejudice. 24 IT IS SO ORDERED. 25 26 Dated: June 27, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28