(PC) Tran v. Nickell ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KIM-KHOI THAI TRAN, Case No. 1:20-cv-00946-JLT (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO EXHAUST 14 J. NICKELL, et al., 21-DAY DEADLINE 15 Defendants. 16 17 Kim-Khoi Thai Tran alleges the defendant-correctional officers at Wasco State Prison 18 subjected him to excessive force. (Doc. 1 at 5.) In his complaint, Plaintiff indicates that he has not 19 yet completed the administrative grievance process and that “it’s still pending.” (Id. at 2.) 20 The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect 21 to prison conditions under … any other Federal law … by a prisoner confined in any jail, prison, 22 or other correctional facility until such administrative remedies as are available are exhausted.” 23 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and “unexhausted 24 claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation omitted). The 25 exhaustion requirement applies to all inmate suits relating to prison life, Porter v. Nussle, 534 26 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 27 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). Inmates are required to 28 “complete the administrative review process in accordance with the applicable procedural rules, 1 including deadlines, as a precondition to bringing suit in federal court.” Woodford v. Ngo, 548 2 U.S. 81, 88, 93 (2006). Generally, failure to exhaust is an affirmative defense that the defendant 3 must plead and prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if 4 failure to exhaust is clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 5 (9th Cir. 2014). 6 It is clear on the face of his complaint that Plaintiff failed to exhaust administrative 7 remedies prior to filing suit. Accordingly, the Court ORDERS Plaintiff, within 21 days of the 8 date of service of this order, to show cause in writing why this action should not be dismissed for 9 his failure to exhaust. Alternatively, Plaintiff may file a notice of voluntary dismissal. 10 11 IT IS SO ORDERED. 12 Dated: March 4, 2021 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28