(PC)Hernandez v. California Department of Corrections and Rehabilitation ( 2022 )

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, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO 13 v. EXHAUST ADMINISTRATIVE REMEDIES 14 CALIFORNIA DEPARTMENT OF 14-DAY DEADLINE CORRECTIONS AND 15 REHABILITATION, Clerk of the Court to Assign a District Judge 16 Defendant. 17 Plaintiff Rocky Hernandez is a state prisoner proceeding pro se. He alleges prison 18 officials have failed to provide him adequate medical care. (Doc. 1.) In his complaint, Plaintiff 19 states that he has not filed an administrative grievance regarding his claims. (Id. at 2.). 20 On November 10, 2021, the Court issued an order to show cause, within 21 days, why this 21 action should not be dismissed for failure to exhaust. (Doc. 7.) The Court cautioned Plaintiff that 22 “[f]ailure to comply with this order w[ould] result in a recommendation that this action be 23 dismissed.” (Id. at 2.) Although more than the provided time has passed, Plaintiff has failed to 24 respond to the order to show cause. (Id.) 25 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 26 respect to prison conditions under . . . any . . . Federal law . . . by a prisoner confined in any jail, 27 prison, or other correctional facility until such administrative remedies as are available are 28 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). Inmates are required to “complete the administrative review process in accordance with 4 the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 5 court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies to all 6 inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the 7 relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 U.S. 8 731, 741 (2001). Generally, failure to exhaust is an affirmative defense that the defendant must 9 plead and prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to 10 exhaust is clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 11 2014). 12 It is clear on the face of his complaint that Plaintiff failed to exhaust administrative 13 remedies prior to filing suit. Accordingly, the the Court RECOMMENDS that this action be 14 DISMISSED without prejudice. The Court DIRECTS the Clerk of the Court to assign a district 15 judge to this action. 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 18 service of these Findings and Recommendations, Plaintiff may file written objections with the 19 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 20 Recommendations.” Failure to file objections within the specified time may result in waiver of 21 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 22 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 IT IS SO ORDERED. 24 25 Dated: January 27, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 26 27 28