(PC) Moore v. Dodd ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS J. MOORE, 1:20-cv-01321-GSA-PC 12 Plaintiff, ORDER TO SHOW CAUSE WHY CASE 13 SHOULD NOT BE DISMISSED FOR v. PLAINTIFF’S FAILURE TO EXHAUST 14 ADMINISTRATIVE REMEDIES BEFORE MICHELE DODD, et al., FILING SUIT 15 (ECF No. 1.) Defendants. 16 THIRTY-DAY DEADLINE TO RESPOND 17 18 19 20 21 22 I. BACKGROUND 23 Marcus J. Moore (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 24 with this civil rights action pursuant to 42 U.S.C. § 1983. On September 15, 2020, Plaintiff filed 25 the Complaint commencing this action. (ECF No. 1.) 26 It appears on the face of Plaintiff’s Complaint that he has not exhausted his administrative 27 remedies pursuant to the Prison Litigation Reform Act, 41 U.S.C. § 1997 (e)(a), before filing this 28 lawsuit. 1 II. EXHAUSTION OF ADMINISTRATIVE REMEDIES 2 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 3 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 4 confined in any jail, prison, or other correctional facility until such administrative remedies as 5 are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the 6 available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 7 910 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is 8 required regardless of the relief sought by the prisoner and regardless of the relief offered by the 9 process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion 10 requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 11 S.Ct. 983 (2002). 12 Prisoners are required to exhaust before bringing suit. Booth, 532 U.S. at 741. From the 13 face of Plaintiff’s Complaint, it appears clear that Plaintiff filed suit prematurely and in such 14 instances, the case may be dismissed. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en 15 banc) (where failure to exhaust is clear from face of complaint, case is subject to dismissal for 16 failure to state a claim under Rule 12(b(6)); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 17 2003) (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal. . . .”) 18 (overruled on other grounds by Albino, 747 F.3d at 1168-69); see also Nordstrom v. Ryan, 762 19 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to state a claim under § 1915A ‘incorporates 20 the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil 21 Procedure 12(b)(6).’”) (quoting Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)). 22 III. DISCUSSION AND ORDER 23 Plaintiff indicates in the Complaint that he did not complete the process to exhaust his 24 administrative remedies for his claim in this case. (ECF No. 1 at 3.) Plaintiff has answered “No” 25 to the question “Did you appeal your request for relief on Claim I to the highest level.” (Id.) 26 Thus, it appears on the face of the Complaint that Plaintiff failed to exhaust his administrative 27 remedies before filing suit. Plaintiff shall be required to show cause why this case should not be 28 dismissed, without prejudice, for failure to exhaust remedies prior to filing suit. 1 ORDER TO SHOW CAUSE 2 In light of the foregoing analysis, Plaintiff is HEREBY ORDERED to respond in writing 3 to this order, within thirty (30) days of the date of service of this order, showing cause why this 4 case should not be dismissed for Plaintiff’s failure to exhaust administrative remedies before 5 filing suit. Failure to respond to this order may result in the dismissal of this case. 6 IT IS SO ORDERED. 7 8 Dated: September 21, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28