(PC) Anderson v. Beregovskaya ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES HENRY ANDERSON, ) Case No. 1:21-cv-01451-SAB (PC) ) 12 Plaintiff, ) ) ORDER DISCHARGING ORDER TO SHOW 13 v. ) CAUSE 14 DR. OLGA BEREGOVSKAYA, ) (ECF No. 5) ) 15 Defendant. ) ) 16 ) ) 17 ) 18 Plaintiff James Henry Anderson is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Plaintiff filed the instant action on September 29, 2021. 21 On September 30, 2021, the Court issued an order to show cause why the action should not be 22 dismissed, without prejudice, for failure to exhaust the administrative remedies. (ECF No. 5.) 23 After receiving an extension of time, Plaintiff filed a response on November 17, 2021. (ECF 24 No. 8.) In his response, Plaintiff contends that he was denied access to the law library on several 25 different occasions and when he was able to file an inmate appeal he received no response. (Id.) 26 Plaintiff's failure to exhaust remedies is no longer clear on the face of the complaint and therefore, the 27 court shall not resolve this issue at this stage of the proceedings. Albino v. Baca, 747 F.3d 1162, 1169 28 (9th Cir. 2014) (en banc) (where failure to exhaust is clear from face of complaint, case is subject to 1 || dismissal for failure to state a claim under Rule 12(b)(6)); Wyatt v. Terhune, 315 F.3d 1108, 1120 □□ 2 || Cir. 2003) (“A prisoner's concession to nonexhaustion is a valid ground for dismissal....”) (overruled 3 || on other grounds by Albino, 747 F.3d at 1168-69). Accordingly, the Court's order to show cause, 4 || issued on September 30, 2021, shall be discharged. 5 Based on the foregoing, IT IS HEREBY ORDERED that: 6 1. The Court's order to show cause, issued on September 30, 2021, is DISCHARGED; 7 and 8 2. The Court shall screen Plaintiff's complaint in due course. 9 10 IS SO ORDERED. A (Fe 11 || Dated: _November 18, 2021 OF 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28