(PC) Glaze v. North Kern State Prison ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ISAIAH GLAZE, Case No. 1:21-cv-01054-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS 14 NORTH KERN STATE PRISON, et al., REGARDING DISMISSAL OF ACTION FOR FAILURE TO EXHAUST 15 Defendants. ADMINISTRATIVE REMEDIES 16 FOURTEEN (14) DAY DEADLINE 17 18 Plaintiff Isaiah Glaze (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was initiated on July 20 6, 2021. (ECF No. 1.) 21 I. Legal Standard 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 25 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 26 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. 27 § 1915(e)(2)(B)(ii). 28 /// 1 Pursuant to the Prison Litigation Reform Act of 1996, “[n]o action shall be brought with 2 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 3 confined in any jail, prison, or other correctional facility until such administrative remedies as are 4 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 5 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney 6 v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002). Exhaustion is required regardless of the 7 relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 8 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison 9 life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 10 In rare cases where a failure to exhaust is clear from the face of the complaint, it may be 11 dismissed for failure to state a claim. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 12 2014); Medina v. Sacramento Cty. Sheriff’s Dep’t, No. 2:16-cv-0765 AC P, 2016 WL 6038181, at 13 *3 (E.D. Cal. Oct. 14, 2016) (“When it is clear from the face of the complaint and any attached 14 exhibits that a plaintiff did not exhaust his available administrative remedies before commencing 15 an action, the action may be dismissed on screening for failure to state a claim.”); Lucas v. Dir. of 16 Dep’t. of Corrs., 2015 WL 1014037, at *4 (E.D. Cal. Mar. 6, 2015) (relying on Albino and 17 dismissing complaint without prejudice on screening due to plaintiff’s failure to exhaust 18 administrative remedies prior to filing suit). 19 II. Discussion 20 In the complaint, Plaintiff concedes that while there is a grievance procedure at his current 21 institution, and he presented the facts in his complaint for review through the grievance 22 procedure, he did not appeal to the highest level of appeal available to him. (ECF No. 1.) 23 Plaintiff states that he “put in administrative appeal on 06/13/21 about my complaints, have not 24 heard back as of yet.” (Id. at 1.) Plaintiff’s complaint is signed and dated June 21, 2021. (Id. at 25 3.) 26 Based on the information in the complaint, it appeared Plaintiff filed suit prematurely 27 without first exhausting his administrative remedies in compliance with the PLRA, section 28 1997e(a). The Court therefore issued an order directing Plaintiff to show cause why this action 1 should not be dismissed, without prejudice, for failure to exhaust prior to filing suit. (ECF No. 6.) 2 Plaintiff filed a response to the order to show cause on July 22, 2021. (ECF No. 9.) 3 Plaintiff argues that the action should not be dismissed because he believes that the administrative 4 process is inadequate to address the issue at hand. Since his arrival at North Kern State Prison, 5 Plaintiff states that he has noticed how they have failed to follow some of the most basic rights 6 given to inmates, such as freedom of religion, confidential mail, telephone calls, and protection 7 from cruel and unusual conditions, and Plaintiff believes that there needs to be a declaratory 8 judgment given the evidence and examples he has sent to the Court in his complaint. (Id.) 9 Based on Plaintiff’s response, there is no indication that Plaintiff pursued his appeal 10 beyond the first level, or that he waited to receive a response from CDCR regarding the grievance 11 he submitted related to this action. Nor has Plaintiff provided any explanation for his failure to 12 do so. Though Plaintiff alleges that he has witnessed the prison’s failure to follow certain basic 13 rights given to inmates, none of those failures relate to the processing of administrative 14 grievances or appeals. Thus, it appears clearly on the face of the complaint that Plaintiff filed suit 15 prematurely without first exhausting his administrative remedies in compliance with section 16 1997e(a). 17 III. Order and Recommendation 18 Accordingly, the Clerk of the Court is DIRECTED to randomly assign a District Judge to 19 this action. 20 Furthermore, it is HEREBY RECOMMENDED that this action be dismissed, without 21 prejudice, based on Plaintiff’s failure to exhaust administrative remedies prior to filing suit. 22 These findings and recommendations will be submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 24 (14) days after being served with these findings and recommendations, Plaintiff may file written 25 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 26 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 27 /// 28 /// 1 specified time may result in the waiver of the “right to challenge the magistrate’s factual 2 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 3 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. 4 5 Dated: August 3, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28