(PC) Bland v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA D. BLAND, Case No. 1:20-cv-00895-NONE-SKO (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE 13 v. TO EXHAUST ADMINISTRATIVE REMEDIES 14 RALPH DIAZ, et al., 21-DAY DEADLINE 15 Defendants. 16 17 Plaintiff Joshua D. Bland is a state prisoner proceeding pro se. He alleges that a 18 correctional officer threatened his health and safety by yelling in his face, subjecting him to a risk 19 of contracting COVID-19. (See Doc. 1 at 3.) In his complaint, Plaintiff acknowledges that he 20 failed to pursue an administrative grievance to the highest level of review. (Id.) 21 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 22 respect to prison conditions under … any other Federal law … by a prisoner confined in any jail, 23 prison, or other correctional facility until such administrative remedies as are available are 24 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 25 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 26 omitted). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 27 Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 28 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 1 Inmates are required to “complete the administrative review process in accordance with 2 the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 3 court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). Administrative appeals are generally 4 subject to three levels of review before the remedy is deemed exhausted. Cal. Code Regs., tit. 15, 5 § 3084.1(b); see also Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010). 6 Generally, failure to exhaust is an affirmative defense that the defendant must plead and 7 prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is 8 clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 9 It is clear on the face of his complaint that Plaintiff failed to exhaust administrative 10 remedies prior to filing suit. Accordingly, the Court ORDERS Plaintiff, within 21 days of the 11 date of service of this order, to show cause in writing why this action should not be dismissed for 12 his failure to exhaust. Alternatively, Plaintiff may file a notice of voluntary dismissal. 13 IT IS SO ORDERED. 14 Sheila K. Oberto 15 Dated: October 28, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28