(PC) Washington v. Sutton ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ISAIAH WASHINGTON, 1:20-cv-00983 AWI-GSA-PC 12 Plaintiff, ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR 13 v. PLAINTIFF’S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES, AS 14 SUTTON, et al., APPARENT ON THE FACE OF THE COMPLAINT 15 Defendants. THIRTY DAY DEADLINE FOR PLAINTIFF 16 TO RESPOND TO ORDER 17 18 19 I. BACKGROUND 20 Isaiah Washington (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On July 16, 2020, Plaintiff 22 filed the Complaint commencing this action. (ECF No. 1.) 23 II. PLAINTIFF’S COMPLAINT - SUMMARY 24 In the Complaint Plaintiff alleges that on September 23, 2019, he was subjected to a strip 25 search during which officers found a pill in his sock and a cell phone in his anus. Plaintiff claims 26 that he was sexually assaulted during the search when one officer stuck his hands in Plaintiff’s 27 anus and retrieved a cell phone, and stuck several of his fingers in Plaintiff’s alimentary canal 28 while jokingly stating, “What else you got in there,” while the other officers laughed. 1 Plaintiff alleges that after he was released from administrative segregation he filed a 602 2 appeal for sexual assault almost four months later. Wasco officials canceled the appeal by 3 improperly and illegally interfering with Plaintiff’s appeal by changing the topic of Plaintiff’s 4 appeal from sexual assault to misuse of force, and determined that Plaintiff had exceeded the 5 time limits for submitting an appeal. Less than three months later Plaintiff re-submitted a similar 6 sexual assault 602 appeal regarding the same incident. Officer F. Feliciano, appeals coordinator, 7 canceled Plaintiff’s appeal for the same erroneous reasons stating that Plaintiff’s claims were not 8 sexual assault claims under PREA (Prison Rape Elimination Act) standards and were only misuse 9 of force. Plaintiff indicates that he did not appeal any of his grievances to the highest level of 10 review because the “appeal was erroneously canceled.” (Comp., ECF No. 1 at 4 ¶ 5, 6 ¶ 5, 7 ¶ 11 5.) 12 III. PRISON LITIGATION REFORM ACT 13 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 14 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 15 confined in any jail, prison, or other correctional facility until such administrative remedies as 16 are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the 17 available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 18 910 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is 19 required regardless of the relief sought by the prisoner and regardless of the relief offered by the 20 process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion 21 requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 22 S.Ct. 983 (2002). Prisoners are required to exhaust before bringing suit. Booth, 532 U.S. at 741. 23 From the face of Plaintiff’s Complaint, it appears clear that Plaintiff filed suit prematurely 24 and in such instances, the case may be dismissed. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 25 2014) (en banc) (where failure to exhaust is clear from face of complaint, case is subject to 26 dismissal for failure to state a claim under Rule 12(b(6)); Wyatt v. Terhune, 315 F.3d 1108, 1120 27 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal. . . .”) 28 (overruled on other grounds by Albino, 747 F.3d at 1168-69); see also Nordstrom v. Ryan, 762 1 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to state a claim under § 1915A ‘incorporates 2 the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil 3 Procedure 12(b)(6).’”) (quoting Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)). 4 Plaintiff alleges in the Complaint that the sexual assault against him occurred on 5 September 23, 2019, but he did not file an appeal until four months after he was released from 6 administrative segregation (see, California Code of Regs, Tit 15, sections 3482(b), and 7 3487(a)(1)), and he did not submit any of his appeals to the highest level of review before filing 8 the Complaint on July 16, 2020. 9 Based on the above, Plaintiff shall be required to show cause why this case should not be 10 dismissed, without prejudice, for failure to exhaust remedies prior to filing suit. 11 IV. ORDER TO SHOW CAUSE 12 In light of the foregoing analysis, Plaintiff is HEREBY ORDERED to respond in writing 13 to this order, within thirty (30) days of the date of service of this order, showing cause why this 14 case should not be dismissed for Plaintiff’s failure to exhaust administrative remedies before 15 filing suit. Failure to respond to this order may result in the dismissal of this case. 16 17 IT IS SO ORDERED. 18 19 Dated: September 20, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28