(PC) Mcinnis v. T. Silva ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT LAMAR MCINNIS, Case No. 1:21-cv-01171-BAM (PC) 12 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE 13 v. (ECF No. 19) 14 SILVA, et al., ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE 15 Defendants. FINDINGS AND RECOMMENDATIONS 16 REGARDING DISMISSAL OF ACTION FOR FAILURE TO EXHAUST 17 ADMINISTRATIVE REMEDIES 18 FOURTEEN (14) DAY DEADLINE 19 20 Plaintiff Robert Lamar Mcinnis (“Plaintiff”) is a state prisoner proceeding pro se and in 21 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was initiated 22 on June 8, 2021 in the United States District Court for the Northern District of California. (ECF 23 No. 1.) The action was transferred to the Eastern District of California on August 2, 2021. (ECF 24 No. 9.) 25 On August 31, 2021, the Court issued an order requiring Plaintiff to show cause, within 26 twenty-one days, why this action should not be dismissed for failure to exhaust administrative 27 remedies. (ECF No. 19.) On September 21, 2021, Plaintiff filed a response to the order to show 28 cause. (ECF No. 20.) 1 I. Legal Standard 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 5 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 6 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. 7 § 1915(e)(2)(B)(ii). 8 Pursuant to the Prison Litigation Reform Act of 1996, “[n]o action shall be brought with 9 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 10 confined in any jail, prison, or other correctional facility until such administrative remedies as are 11 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 12 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney 13 v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002). Exhaustion is required regardless of the 14 relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 15 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison 16 life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 17 In rare cases where a failure to exhaust is clear from the face of the complaint, it may be 18 dismissed for failure to state a claim. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 19 2014); Medina v. Sacramento Cty. Sheriff’s Dep’t, No. 2:16-cv-0765 AC P, 2016 WL 6038181, at 20 *3 (E.D. Cal. Oct. 14, 2016) (“When it is clear from the face of the complaint and any attached 21 exhibits that a plaintiff did not exhaust his available administrative remedies before commencing 22 an action, the action may be dismissed on screening for failure to state a claim.”); Lucas v. Dir. of 23 Dep’t. of Corrs., 2015 WL 1014037, at *4 (E.D. Cal. Mar. 6, 2015) (relying on Albino and 24 dismissing complaint without prejudice on screening due to plaintiff’s failure to exhaust 25 administrative remedies prior to filing suit). 26 II. Discussion 27 In the complaint, it is not clear whether Plaintiff filed a grievance regarding the claims 28 alleged prior to filing this lawsuit. (See ECF No. 1.) However, on July 8, 2021, Plaintiff filed a 1 letter to the Court including a copy of the response to his 602 grievance. (ECF No. 8.) Based on 2 that attachment, it appears Plaintiff received a final decision on his grievance on June 25, 2021, 3 which is after the complaint was filed on June 8, 2021. (Id. at 2.) Based on this information, it 4 appeared Plaintiff filed suit prematurely without first exhausting his administrative remedies in 5 compliance with the PLRA, section 1997e(a). 6 In his response to the Court’s order to show cause, Plaintiff states that when he filed his 7 complaint, he had filed a 602 grievance on said incident. (ECF No. 20.) However, Plaintiff then 8 states that he heard nothing in response to his 602 until August, when a response came stating that 9 the Office of Appeals response was past the time constraints and that an investigation will be 10 conducted and that served as his response, and he did not need to send his 602 up to Sacramento. 11 Plaintiff states that he did submit it anyway and did not hear anything about it, and the second 12 level is also past time constraints. Plaintiff then filed a grievance, and received a response on 13 August 21 stating that that was his response and no further action will need to be taken, and based 14 on that response he exhausted his administrative remedies. Plaintiff still sent it to Sacramento to 15 the Office of Appeals for them to respond anyway, and he has not received a response. Plaintiff 16 argues that his case should not be dismissed because he exhausted all of his administrative 17 remedies. (Id.) 18 Based on Plaintiff’s complaint, the letter to the Court including a copy of the first 19 response to his grievance, and Plaintiff’s response to the order to show cause, it appears that 20 while Plaintiff did exhaust his administrative grievances, he did not do so until after he filed the 21 complaint in this action. Based on this information, Plaintiff exhausted his administrative 22 remedies, at the earliest, on June 25, 2021, when he received a response stating that his claims 23 were under investigation but that “Due to the expiration of time, this response by the Office of 24 Grievances will be the only response.” (ECF No. 8, p. 2.) 25 Plaintiff filed the complaint on June 8, 2021. (ECF No. 1.) Therefore, because Plaintiff 26 did not receive a final decision until June 25, 2021, Plaintiff failed to exhaust his administrative 27 remedies before filing this action. Plaintiff is informed that a dismissal of this action, without 28 prejudice, does not prevent him from re-filing this action in this Court at a later date, which would 1 be after he completed exhaustion of his administrative remedies. 2 III. Order and Recommendation 3 Accordingly, the order to show cause issued on August 31, 2021, (ECF No. 19), is 4 HEREBY DISCHARGED and the Clerk of the Court is DIRECTED to randomly assign a 5 District Judge to this action. 6 Furthermore, it is HEREBY RECOMMENDED that this action be dismissed, without 7 prejudice, based on Plaintiff’s failure to exhaust administrative remedies prior to filing suit. 8 These findings and recommendations will be submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 10 (14) days after being served with these findings and recommendations, Plaintiff may file written 11 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 12 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 13 specified time may result in the waiver of the “right to challenge the magistrate’s factual 14 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 15 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 IT IS SO ORDERED. 17 18 Dated: September 22, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28