(PC) Wynn v. Escarcega. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JESSE MICHEL WYNN, Case No. 1:21-cv-00202-AWI-JLT (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO EXHAUST 14 R. ESCARCEGA, et al., 21-DAY DEADLINE 15 Defendants. 16 17 Jesse Michel Wynn alleges correctional officers at California Correctional Institution 18 subjected him to excessive force. (Doc. 1.) In his complaint, Plaintiff indicates that he has not yet 19 completed the administrative grievance process and that his grievance concerning the subject 20 incident “is being reviewed.” (Id. at 2.) 21 The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect 22 to prison conditions under . . . any other Federal law . . . by a prisoner confined in any jail, prison, 23 or other correctional facility until such administrative remedies as are available are exhausted.” 24 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and “unexhausted 25 claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation omitted). The 26 exhaustion requirement applies to all inmate suits relating to prison life, Porter v. Nussle, 534 27 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). Inmates are required to 1 “complete the administrative review process in accordance with the applicable procedural rules, 2 including deadlines, as a precondition to bringing suit in federal court.” Woodford v. Ngo, 548 3 U.S. 81, 88, 93 (2006). Generally, failure to exhaust is an affirmative defense that the defendant 4 must plead and prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if 5 failure to exhaust is clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 6 (9th Cir. 2014). 7 It is clear on the face of his complaint that Plaintiff failed to exhaust administrative 8 remedies prior to filing suit. Accordingly, within 21 days of the date of service of this order, 9 Plaintiff SHALL show cause in writing why this action should not be dismissed for his failure to 10 exhaust. Alternatively, Plaintiff may file a notice of voluntary dismissal. Failure to comply with 11 this order will result in a recommendation that this action be dismissed. 12 13 IT IS SO ORDERED. 14 Dated: June 9, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28