(PC) O'Brien v. Diaz ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KORY T. O’BRIEN, ) Case No.: 1:21-cv-00856-SAB (PC) ) 12 Plaintiff, ) ) ORDER TO SHOW CAUSE WHY ACTION 13 v. ) SHOULD NOT BE DISMISSED, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST THE 14 RITA DIAZ, et al., ) ADMINISTRATIVE REMEDIES ) 15 Defendants. ) (ECF No. 1) ) 16 ) ) 17 ) 18 Plaintiff Kory T. O’Brien is proceeding pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s complaint, filed May 27, 2021. Plaintiff contends he 21 was subjected to retaliation in violation of his rights under the First Amendment. 22 I. 23 SCREENING REQUIREMENT 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 26 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 27 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 28 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 1 U.S.C. § 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the pleader is 3 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 5 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 6 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 7 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 8 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 9 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 10 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 11 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 12 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 13 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 14 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 15 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 16 II. 17 EXHAUSTION OF ADMINISTRATIVE REMEDIES 18 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with respect 19 to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any 20 jail, prison, or other correctional facility until such administrative remedies as are available are 21 exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative 22 remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 23 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner 24 and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the 25 exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 26 (2002). 27 Prisoners are required to exhaust before bringing suit. Booth, 532 U.S. at 741. From the face of 28 Plaintiff’s Complaint, it is clear that Plaintiff filed suit prematurely and in such instances, the case may 1 be dismissed. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (where failure to exhaust 2 is clear from face of complaint, case is subject to dismissal for failure to state a claim under Rule 3 12(b)(6)); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to 4 nonexhaustion is a valid ground for dismissal....”) (overruled on other grounds by Albino, 747 F.3d at 5 1168-69); see also Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to state 6 a claim under § 1915A ‘incorporates the familiar standard applied in the context of failure to state a 7 claim under Federal Rule of Civil Procedure 12(b)(6).’ ”) (quoting Wilhelm v. Rotman, 680 F.3d 1113, 8 1121 (9th Cir. 2012)). 9 It is clear from the face of Plaintiff’s complaint that he has not exhausted administrative remedies 10 pursuant to the Prison Litigation Reform Act, 41 U.S.C. § 1997 (e)(a), before filing this lawsuit. Plaintiff 11 states that he submitted his appeal to the third level on February 8, 2021, and he has not received a 12 response. (Compl. at 8.) Plaintiff also states that he mailed a GA-22 inmate request for interview on 13 February 9, 2021. (Id.) It is clear that Plaintiff appeal was still pending review at the third level at the 14 time that Plaintiff filed the complaint in this action on May 27, 2021. Thus, it appears on the face of the 15 complaint that Plaintiff failed to exhaust his administrative remedies before filing suit. Accordingly, 16 Plaintiff shall be required to show cause why this case should not be dismissed, without prejudice, for 17 failure to exhaust remedies prior to filing suit. 18 III. 19 ORDER 20 Based on the foregoing, it is HEREBY ORDERED that: 21 1. Plaintiff shall show cause in writing within twenty-one (21) days of the date of service 22 of this order as to why this case should not be dismissed for Plaintiff’s failure to exhaust 23 administrative remedies before filing suit; and 24 /// 25 /// 26 /// 27 /// 28 /// 1 2. The failure to respond to this order will result in a recommendation to a district judge 2 dismiss this action without prejudice. 3 4 IT IS SO ORDERED. Al (ee Dated: _ July 1, 2021 OF 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28