(PC) Christopher Lipsey v. Diaz ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER LIPSEY, JR., Case No. 1:21-cv-00787-SKO (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION 13 v. SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE 14 R. DIAZ, et al., REMEDIES 15 Defendants. 21-DAY DEADLINE 16 17 Plaintiff Christopher Lipsey, Jr., is a state prisoner proceeding pro se in this civil rights 18 action. Plaintiff alleges the water provided to him at Kern Valley State Prison is contaminated. 19 (Doc. 1.) In his complaint, Plaintiff indicates that he has filed an administrative grievance 20 regarding his claims, but that he has not yet received a decision from the California Department 21 of Corrections and Rehabilitation (CDCR) Office of Appeals. (See id. at 3, 9.) 22 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 23 respect to prison conditions under . . . any other Federal law . . . by a prisoner confined in any jail, 24 prison, or other correctional facility until such administrative remedies as are available are 25 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 26 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 27 omitted). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 28 Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 1 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 2 Inmates are required to “complete the administrative review process in accordance with 3 the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 4 court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). In California, state-inmate grievances 5 regarding non-healthcare matters are subject to two levels of review. See Cal. Code Regs. tit. 15, 6 § 3481(a). In general, prisoners must receive a disposition from the CDCR Office of Appeals 7 before administrative remedies are deemed exhausted. See id. §§ 3483(m)(1), 3486(m); but see id. 8 § 3483(m)(2). 9 Generally, failure to exhaust is an affirmative defense that the defendant must plead and 10 prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is 11 clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 12 Here, it is clear on the face of his complaint that Plaintiff failed to exhaust administrative 13 remedies prior to filing suit. Accordingly, the Court ORDERS Plaintiff, within 21 days of the 14 date of service of this order, to show cause in writing why this action should not be dismissed for 15 his failure to exhaust. Alternatively, Plaintiff may file a notice of voluntary dismissal. Failure to 16 comply with this order will result in a recommendation that this action be dismissed. 17 IT IS SO ORDERED. 18 19 Dated: November 22, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28