(PC) Cruz v. Kibler ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, Case No. 1:20-cv-01740-NONE-SKO (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO EXHAUST 14 B. KIBLER, et al., 21-DAY DEADLINE 15 Defendants. 16 17 Plaintiff Guillermo Trujillo Cruz is a state prisoner proceeding pro se in this action 18 brought pursuant to 42 U.S.C. § 1983. He alleges that, on November 14, 2020, Defendants 19 purposefully failed to protect him from an attack by another inmate. (Doc. 1 at 3, 5, 6.) 20 Plaintiff’s complaint is dated November 20, 2020, only six days after the subject incident. 21 (Id. at 7.) The short duration of time between the incident and the initiation of this action 22 “strongly suggests that [he] did not … attempt to comply with the exhaustion requirement.” 23 Howell v. Selliers, No. 1:18-cv-00420-EPG, 2018 WL 4173724, at *2 (E.D. Cal. 2018). It would 24 be nearly impossible to complete multiple levels of administrative review in only six days. 25 Additionally, Plaintiff attaches to his complaint responses to grievances filed prior to 26 November 14, 2020. The inclusion of these responses, coupled with the absence of any response 27 regarding the November 14 incident, also suggests that Plaintiff failed to file a grievance 28 regarding the incident, or to receive a response to a grievance, before he filed his complaint. 1 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 2 respect to prison conditions under … any other Federal law … by a prisoner confined in any jail, 3 prison, or other correctional facility until such administrative remedies as are available are 4 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 5 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 6 omitted). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 7 Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 8 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). Inmates are required to 9 “complete the administrative review process in accordance with the applicable procedural rules, 10 including deadlines, as a precondition to bringing suit in federal court.” Woodford v. Ngo, 548 11 U.S. 81, 88, 93 (2006). Generally, failure to exhaust is an affirmative defense that the defendant 12 must plead and prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if 13 failure to exhaust is clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 14 (9th Cir. 2014). 15 It appears that Plaintiff failed to exhaust administrative remedies prior to initiating this 16 action. Accordingly, the Court ORDERS Plaintiff, within 21 days of the date of service of this 17 order, to show cause in writing why this action should not be dismissed for his failure to exhaust. 18 Alternatively, Plaintiff may file a notice of voluntary dismissal. Failure to comply with this order 19 will result in a recommendation that this action be dismissed. 20 21 IT IS SO ORDERED. 22 Dated: January 25, 2021 /s/ Sheila K. Oberto . 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28