(PC)Hernandez v. California Department of Corrections and Rehabilitation ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROCKY HERNANDEZ, Case No. 1:21-cv-01125-SKO (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE 13 v. TO EXHAUST ADMINISTRATIVE REMEDIES 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 21-DAY DEADLINE 15 REHABILITATION, 16 Defendant. 17 18 Plaintiff Rocky Hernandez is a state prisoner proceeding pro se. He alleges prison 19 officials have failed to provide him adequate medical care. (Doc. 1.) In his complaint, Plaintiff 20 states that he has not filed an administrative grievance regarding his claims. (Id. at 2.) 21 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 22 respect to prison conditions under . . . any other Federal law . . . by a prisoner confined in any jail, 23 prison, or other correctional facility until such administrative remedies as are available are 24 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 25 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 26 omitted). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 27 Nussle, 534 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). 1 Inmates are required to “complete the administrative review process in accordance with 2 the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 3 court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). In California, state-inmate grievances 4 regarding healthcare matters are subject to two levels of review. Cal. Code Regs. tit. 15, § 5 3999.226(a)(1). Prisoners must receive a disposition from the highest, “headquarters’ level . . . 6 before administrative remedies are deemed exhausted.” Id. § 3999.226(g). 7 Generally, failure to exhaust is an affirmative defense that the defendant must plead and 8 prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is 9 clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 10 Here, it is clear on the face of his complaint that Plaintiff failed to exhaust administrative 11 remedies prior to filing suit. Accordingly, the Court ORDERS Plaintiff, within 21 days of the 12 date of service of this order, to show cause in writing why this action should not be dismissed for 13 his failure to exhaust. Alternatively, Plaintiff may file a notice of voluntary dismissal. Failure to 14 comply with this order will result in a recommendation that this action be dismissed. 15 IT IS SO ORDERED. 16 17 Dated: November 10, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28