(PC) Thomas v. Reyna ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT QUINCY THOMAS, 1:19-cv-01217-GSA-PC 12 Plaintiff, ORDER TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE DISMISSED FOR 13 v. PLAINTIFF’S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 14 L. REYNA, et al., (ECF No. 1.) 15 Defendants. 30 DAY DEADLINE TO RESPOND 16 17 18 Plaintiff, Robert Quincy Thomas, is a state prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the 20 Complaint commencing this action on September 4, 2019. (ECF No. 1.) 21 In his Complaint, Plaintiff indicates that he did not exhaust his administrative remedies 22 at the prison, stating: 23 “I have filed the grievance but the grievance process can take months to exhaust 24 within CDCR, and due to the seriousness of my claim and me feeling that 25 named defendants are a threat to my life, I got to file my claim as soon as 26 possible. Administrative remedies will be exhausted.” 27 (Compl., ECF No. 1 at 2.) Thus, Plaintiff concedes that the exhaustion process was not 28 completed when he filed the Complaint. (Id.) 1 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 2 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 3 confined in any jail, prison, or other correctional facility until such administrative remedies as 4 are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the 5 available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 6 S.Ct. 910 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion 7 is required regardless of the relief sought by the prisoner and regardless of the relief offered by 8 the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion 9 requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 10 S.Ct. 983 (2002). 11 Prisoners are required to exhaust before bringing suit. Booth, 532 U.S. at 741. From 12 the face of Plaintiff’s Complaint, it appears clear that Plaintiff filed suit prematurely and in 13 such instances, the case may be dismissed. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 14 2014) (en banc) (where failure to exhaust is clear from face of complaint, case is subject to 15 dismissal for failure to state a claim under Rule 12(b(6)); Wyatt v. Terhune, 315 F.3d 1108, 16 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid ground for 17 dismissal. . . .”) (overruled on other grounds by Albino, 747 F.3d at 1168-69); see also 18 Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to state a claim 19 under § 1915A ‘incorporates the familiar standard applied in the context of failure to state a 20 claim under Federal Rule of Civil Procedure 12(b)(6).’”) (quoting Wilhelm v. Rotman, 680 21 F.3d 1113, 1121 (9th Cir. 2012)). Therefore, Plaintiff shall be required to show cause why this 22 case should not be dismissed, without prejudice, for failure to exhaust remedies prior to filing 23 suit. 24 /// 25 /// 26 /// 27 /// 28 /// 1 ORDER TO SHOW CAUSE 2 In light of the foregoing analysis, Plaintiff is HEREBY ORDERED to respond in 3 writing to this order, within thirty (30) days of the date of service of this order, showing cause 4 why this case should not be dismissed for Plaintiff’s failure to exhaust administrative remedies 5 before filing suit. Failure to respond to this order may result in the dismissal of this case. 6 IT IS SO ORDERED. 7 8 Dated: September 26, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28