(PC) Ventura v. Eaton ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN VENTURA, Case No. 1:21-cv-00926-EPG (PC) 12 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE v. WHY THIS ACTION SHOULD NOT BE 13 PATRICK EATON, et al., DISMISSED WITHOUT PREJUDICE FOR 14 FAILURE TO EXHAUST Defendants. 15 THIRTY-DAY DEADLINE 16 17 18 Ruben Ventura (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 19 action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action 20 on June 11, 2021. (ECF No. 1). 21 It appears from the face of the complaint that Plaintiff did not exhaust his available 22 administrative remedies before filing this action. Plaintiff admits that administrative remedies 23 were available and that he did not file a grievance. (Id. at 3 & 4). 24 Accordingly, the Court will order Plaintiff to file a response within thirty days, 25 explaining why this action should not be dismissed for failure to exhaust available 26 administrative remedies. Such a dismissal would be without prejudice, so that Plaintiff may be 27 able to refile the action after exhausting administrative remedies, to the extent those remedies 28 are still available to him. 1 I. LEGAL STANDARDS 2 Currently, the California prison grievance system has two levels of review. Cal. Code 3 Regs. tit. 15, §§ 3483, 3486. Generally, “[c]ompletion of the review process by the Office of 4 Appeals constitutes exhaustion of all administrative remedies available to a claimant within the 5 Department.” Cal. Code Regs. tit. 15, § 3486. 6 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 7 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 8 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 9 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 10 Prisoners are required to exhaust the available administrative remedies prior to filing 11 suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 12 (9th Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating 13 to prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of 14 the relief sought by the prisoner and regardless of the relief offered by the process, unless “the 15 relevant administrative procedure lacks authority to provide any relief or to take any action 16 whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); see 17 also Ross v. Blake, 136 S.Ct. 1850, 1857, 1859 (2016). 18 “Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong 19 for which redress is sought. The grievance need not include legal terminology or legal theories, 20 because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its 21 resolution, not to lay groundwork for litigation. The grievance process is only required to alert 22 prison officials to a problem, not to provide personal notice to a particular official that he may 23 be sued.” Reyes, 810 F.3d at 659 (alteration in original) (citations and internal quotation marks 24 omitted). 25 As discussed in Ross, 136 S.Ct. at 1862, there are no “special circumstances” 26 exceptions to the exhaustion requirement. The one significant qualifier is that “the remedies 27 must indeed be ‘available’ to the prisoner.” Id. at 1856. The Ross Court described this 28 qualification as follows: 1 [rAeg]unl aatdiomnisn iosrtr agtuividea pnrcoec medautreer iiasl su nmaavya iplarbolme iwseh)e int (odpeesrpaittees wahs aat 2 simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. See 532 U.S., at 736, 3 738, 121 S.Ct. 1819…. 4 Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use…. And finally, 5 the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, 6 misrepresentation, or intimidation…. As all those courts have recognized, such interference with an inmate's pursuit of relief 7 renders the administrative process unavailable. And then, once 8 again, § 1997e(a) poses no bar. Id. at 1859-60. 9 “When prison officials improperly fail to process a prisoner’s grievance, the prisoner is 10 deemed to have exhausted available administrative remedies.” Andres v. Marshall, 867 F.3d 11 1076, 1079 (9th Cir. 2017). 12 If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal 13 without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S. 14 at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). 15 II. ANALYSIS 16 It appears from the face of the complaint that Plaintiff did not exhaust his available 17 administrative remedies before filing this action. In his complaint, Plaintiff alleges two claims. 18 For both claims, Plaintiff admits that administrative remedies were available and that he did not 19 file a grievance before filing this action. (Id. at 3 & 4).1 20 Accordingly, the Court will order Plaintiff to show cause why this action should not be 21 dismissed for failure to exhaust available administrative remedies. The Court notes that this 22 dismissal would be without prejudice. Therefore, if Plaintiff exhausts his administrative 23 24 25 1 Plaintiff does allege that he already caught COVID-19, and that there is thus “nothing else to be done by the Admin remedies.” (ECF No. 1, p. 4). However, Plaintiff appears to misunderstand the relevant law. 26 Exhaustion is not required only where the grievance procedure can prevent an inmate from being injured. Instead, it is required regardless of the relief sought and regardless of the relief offered by the process, unless “the relevant 27 administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint.” Booth, 532 U.S. at 736 (emphasis added); see also Ross, 136 S.Ct. at 1857. And here, there are no 28 factual allegations suggesting that the administrative procedure lacks authority to provide any relief or take any 1 remedies in the future, he could refile the complaint. 2 The Court also welcomes Plaintiff to file any documents he believes demonstrates that 3 || he has exhausted all available administrative remedies. 4 I. CONCLUSION AND ORDER TO SHOW CAUSE 5 Accordingly, it is HEREBY ORDERED that, within thirty (30) days from the date of 6 || service of this order, Plaintiff shall show cause why this action should not be dismissed, 7 || without prejudice, for failure to exhaust available administrative remedies. Plaintiff's response 8 || may also contain any documents Plaintiff believes are responsive to the exhaustion issue. If 9 || Plaintiff fails to file a response the Court may recommend to a district judge that Plaintiffs 10 || complaint be dismissed without prejudice for failure to exhaust administrative remedies. 11 || Again, if Plaintiffs case is dismissed for failure to exhaust administrative remedies, Plaintiff 12 || may refile the complaint after he has exhausted administrative remedies to the extent those 13 || remedies are still available to him. 14 1s IT IS SO ORDERED. 16 || Dated: _ June 16, 2021 [see hey 7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28