(PC) Taylor v. Haroun ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOE ALFRED TAYLOR, Case No. 1:21-cv-01109-DAD-JLT (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION 13 v. SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE 14 AYUB HAROUN, et al., REMEDIES 15 Defendants. 21-DAY DEADLINE 16 17 Plaintiff, a state prisoner, alleges the defendants unlawfully terminated his participation in 18 a prison religious diet program. (Doc. 1.) Plaintiff attaches the administrative grievance he filed 19 and the responses thereto to his complaint. (Id. at 10-19.) According to these documents, prison 20 officials disapproved of Plaintiff’s grievance at the first level of review on September 30, 2020. 21 (Id. at 17.) Plaintiff appealed the decision on November 6, 20201, which the California 22 Department of Corrections and Rehabilitation (CDCR) Office of Appeals rejected as untimely. 23 (Id. at 15-19.) 24 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 25 respect to prison conditions under . . . any other Federal law . . . by a prisoner confined in any jail, 26 prison, or other correctional facility until such administrative remedies as are available are 27 1 According to his proof of service, Plaintiff provided the appeal to prison officials for mailing on 28 November 1, 2020. (Doc. 1 at 18.) 1 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 2 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 3 omitted). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 4 Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 5 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 6 Inmates are required to “complete the administrative review process in accordance with 7 the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 8 court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). In California, state-inmate grievances are 9 subject to two levels of review. See Cal. Code Regs. tit. 15, § 3481(a). In general, prisoners must 10 receive a disposition from the CDCR Office of Appeals at the second level of review before 11 administrative remedies are deemed exhausted. See id. §§ 3483(m)(1), 3486(m); but see id. § 12 3483(m)(2). The Office of Appeals may reject an appeal if the prisoner did not submit it within 13 30 days of the decision at the first level of review. See id. §§ 3485(b), 3486(e), 3487(a)(1). A 14 rejection does not exhaust administrative remedies. Id. § 3486(m). 15 Failure to exhaust is generally an affirmative defense that the defendant must plead and 16 prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is 17 clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 18 It is clear on the face of his complaint that Plaintiff failed to exhaust administrative 19 remedies. Accordingly, the Court ORDERS Plaintiff, within 21 days of the date of service of this 20 order, to show cause in writing why this action should not be dismissed for his failure to exhaust. 21 Alternatively, Plaintiff may file a notice of voluntary dismissal. Failure to comply with this order 22 will result in a recommendation that this action be dismissed. 23 IT IS SO ORDERED. 24 25 Dated: December 4, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 26 27 28