(PC) Hammler v. State of California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, 1:20-cv-00630-DAD-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, 13 RECOMMENDING THAT THIS CASE BE v. DISMISSED WITHOUT PREJUDICE FOR 14 PLAINTIFF’S FAILURE TO EXHAUST STATE OF CALIFORNIA, et al., ADMINISTRATIVE REMEDIES 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 18 19 20 21 I. BACKGROUND 22 Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 23 with this civil rights action pursuant to 42 U.S.C. § 1983. On May 5, 2020, Plaintiff filed the 24 Complaint commencing this action. (ECF No. 1.) Plaintiff names ten defendants and claims 25 that his rights to medical care under the Eighth Amendment were violated when defendants 26 stopped giving him his usual medication and offered him other medications instead. 27 On July 1, 2020, the court issued an order requiring Plaintiff to respond and show cause 28 why this case should not be dismissed without prejudice for his failure to exhaust administrative 1 remedies before filing suit pursuant to the requirements of the Prison Litigation Reform Act of 2 1995. (ECF No. 16.) On July 19, 2020, Plaintiff filed a response to the order. (ECF No. 19.) In 3 his response Plaintiff does not discuss whether or not he exhausted his available remedies. 4 Instead, Plaintiff argues that his case should be allowed to proceed because he is in imminent 5 danger of serious harm. 6 II. EXHAUSTION OF ADMINISTRATIVE REMEDIES 7 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 8 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 9 confined in any jail, prison, or other correctional facility until such administrative remedies as 10 are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the 11 available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 12 910 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is 13 required regardless of the relief sought by the prisoner and regardless of the relief offered by the 14 process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion 15 requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 16 S.Ct. 983 (2002). However, a prisoner may be excused from complying with the PLRA’s 17 exhaustion requirement if he establishes that the existing administrative remedies were 18 effectively unavailable to him. Albino v. Baca (Albino I), 697 F.3d 1023, 1031 (9th Cir. 2012). 19 If it appears clear on the face of the complaint that a plaintiff filed suit prematurely, the 20 case may be dismissed. Albino v. Baca (Albino II), 747 F.3d 1162, 1169 (9th Cir. 2014) (en 21 banc) (where failure to exhaust is clear from face of complaint, case is subject to dismissal for 22 failure to state a claim under Rule 12(b(6)); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 23 2003) (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal. . . .”) 24 (overruled on other grounds by Albino II, 747 F.3d at 1168-69); see also Nordstrom v. Ryan, 762 25 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to state a claim under § 1915A ‘incorporates 26 the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil 27 Procedure 12(b)(6).’”) (quoting Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)). 28 /// 1 III. DISCUSSION 2 The court previously found that Plaintiff’s allegations in the Complaint satisfied the 3 imminent danger exception to the three strikes bar under 28 U.S.C. § 1915(g), because “the 4 prison’s failure to provide [Plaintiff] with the correct medications caused ‘a chemical 5 imbalance[which] itself [is] a physical injury.’” (ECF No. 9 at 2:9-15.) However, “§ 1915(g) 6 concerns only a threshold procedural question,” (Id.), and Plaintiff is not excused from the 7 exhaustion requirement because he qualified for the imminent danger exception to the “three 8 strikes” rule, Jensen v. Knowles, 621 F.Supp.2d 921, 927 (E.D. Cal. 2008). Prisoners are 9 required to exhaust the available administrative remedies prior to filing suit. (Jones, 549 U.S. at 10 211.) Exhaustion is required regardless of the relief sought by the prisoner and regardless of the 11 relief offered by the process, Booth, 532 U.S. at 741, and the exhaustion requirement applies to 12 all suits relating to prison life, Porter, 435 U.S. at 532. 13 Plaintiff’s allegations in the Complaint describe events occurring at Corcoran State Prison 14 in Corcoran, California, from approximately March 4, 2020 until April 10, 2020. The Complaint 15 was filed less than a month later on May 5, 2020, causing an inference that Plaintiff could not 16 have exhausted his administrative remedies before filing this lawsuit. Plaintiff’s failure to 17 exhaust was therefore evident on the face of the Complaint. Plaintiff was ordered to show cause 18 why this case should not be dismissed without prejudice for failure to exhaust his remedies. 19 Plaintiff did not offer any evidence that he exhausted his remedies or that the exhaustion process 20 was not available to him before he filed suit. Under these facts this case can be dismissed, without 21 prejudice, for Plaintiff’s failure to exhaust remedies prior to filing suit. 22 IV. CONCLUSION AND RECOMMENDATIONS 23 The court finds that Plaintiff failed to exhaust his available administrative remedies 24 before filing this case. Therefore, this case should be dismissed without prejudice. 25 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 26 1. This case be dismissed without prejudice based on Plaintiff’s failure to exhaust 27 his available administrative remedies prior to filing suit; and 28 2. The Clerk be directed to close this case. 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 3 (14) days from the date of service of these findings and recommendations, Plaintiff may file 4 written objections with the court. Such a document should be captioned “Objections to 5 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 6 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 7 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 8 Cir. 1991)). 9 IT IS SO ORDERED. 10 11 Dated: July 16, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28