(PC) Washington v. Fresno County Sheriff ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PERRY WASHINGTON, Case No. 1:19-cv-01069-NONE-SKO (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED WITHOUT 13 v. PREJUDICE FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 14 FRESNO COUNTY SHERIFF, et al., 21-DAY DEADLINE 15 Defendants. 16 17 Perry Washington initiated this action on August 5, 2019, while incarcerated at Fresno 18 County Jail. (See Doc. 1.) Plaintiff alleges that Fresno County sheriff’s deputies subjected him to 19 sexual assault, failed to protect him from abuse, and denied him adequate medical care on July 24 20 and 25, 2019, less than two weeks before he filed suit. (See Doc. 19.) Thus, in its screening order, 21 the Court informed Plaintiff that he “filed suit prematurely without first exhausting his 22 administrative remedies” pursuant to the Prison Litigation Reform Act. (Doc. 13 at 6.) 23 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 24 respect to prison conditions under … any other Federal law … by a prisoner confined in any jail, 25 prison, or other correctional facility until such administrative remedies as are available are 26 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 27 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 28 omitted). Inmates are required to “complete the administrative review process in accordance with 1 the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 2 court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies to all 3 inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the 4 relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 U.S. 5 731, 741 (2001). Generally, failure to exhaust is an affirmative defense that the defendant must 6 plead and prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to 7 exhaust is clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 8 2014). 9 It is clear on the face of his complaint that Plaintiff failed to exhaust administrative 10 remedies prior to filing suit on August 5, 2019. Thus, in its screening order, the Court instructed 11 Plaintiff to file an amended complaint and “explain the status of his exhaustion requirement and 12 why this action should not be dismissed, without prejudice, for failure to exhaust prior to filing 13 suit.” (Doc. 13 at 6.) 14 Plaintiff filed a first amended complaint on February 10, 2020 (Doc. 19). Plaintiff attaches 15 copies of several inmate grievances that he filed while at Fresno County Jail, some of which are 16 related to the claims in his complaint, some of which are not, but none of which were filed prior 17 to August 5, 2019. (See id. at 8-20.) Plaintiff also does not explain why this action should not be 18 dismissed for failure to exhaust. 19 Accordingly, within 21 days, Plaintiff shall show cause in writing why this action should 20 not be dismissed without prejudice for failure to exhaust administrative remedies prior to filing 21 suit. Alternatively, Plaintiff may file a notice of voluntary dismissal. Plaintiff is advised that 22 failure to timely respond to this order will result in dismissal of this action with prejudice 23 for failure to obey a court order. 24 IT IS SO ORDERED. 25 Sheila K. Oberto 26 Dated: March 27, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 27 28