(PC) Perkins v. Cueva ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALONZO RAYSHAWN PERKINS, No. 2: 21-cv-1451 KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 DANIEL E. CUEVA, 15 Defendant. 16 17 By an order filed August 17, 2021, plaintiff was ordered to either pay the filing fee or file 18 a completed in forma pauperis affidavit and a certified copy of his prison trust account statement, 19 and was cautioned that failure to do so would result in a recommendation that this action be 20 dismissed. (ECF No. 3.) The thirty day period has now expired, and plaintiff has not responded 21 to the court’s order and has not filed the required documents. Based on plaintiff’s failure to 22 comply with the August 17, 2021 order, the undersigned recommends that this action be 23 dismissed. 24 Plaintiff opened this action by filing a motion for injunctive relief. (ECF No. 1.) Because 25 plaintiff failed to pay the filing fee or file his in forma pauperis application, the undersigned does 26 not address plaintiff’s motion for injunctive relief. However, the undersigned makes the 27 following observations regarding this motion. 28 //// 1 In the motion for injunctive relief, plaintiff claims that his cell does not have a working 2 electrical outlet. Plaintiff appears to request a court order directing prison officials to move him 3 to a cell with a working electrical outlet. Plaintiff admits that he failed to exhaust administrative 4 remedies regarding the issues raised in the motion for injunctive relief. Plaintiff alleges that it can 5 take up to several months to exhaust administrative remedies. Plaintiff requests that he be 6 excused from the administrative exhaustion requirement. 7 The Prison Litigation Reform Act (PLRA) of 1995 requires that prisoners exhaust “such 8 administrative remedies as are available” before commencing a suit challenging prison 9 conditions. 42 U.S.C. § 1997e(a). This statutory exhaustion requirement applies to all inmate 10 suits about prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). 11 In order to exhaust available administrative remedies, a prisoner must comply with the 12 prison’s procedural rules as a necessary precondition to bringing suit in federal court. Woodford 13 v. Ngo, 548 U.S. 81, 90 (2006) (“Proper exhaustion demands compliance with an agency’s 14 deadlines and other critical procedural rules.”). 15 Because exhaustion is mandatory, unexhausted claims may not be brought to court. Jones 16 v. Bock, 549 U.S. 199, 211 (2007) (citing Porter, 534 U.S. at 524); see also Ross v. Blake, 136 S. 17 Ct. 1850, 1856 (2016) (reaffirming that “special circumstances” do not excuse a failure to exhaust 18 if remedies were available). If a prisoner has not exhausted available administrative remedies 19 before filing his federal suit, the court must dismiss the action without prejudice. McKinney v. 20 Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (per curiam). 21 Had plaintiff paid the filing fee or filed an in forma pauperis application, the undersigned 22 would have recommended dismissal of this action based on plaintiff’s failure to exhaust 23 administrative remedies, which is clear from the face of plaintiff’s motion for injunctive relief. 24 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is 25 directed to assign a district judge to this case; and 26 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 27 //// 28 //// ] These findings and recommendations are submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 3 || after being served with these findings and recommendations, plaintiff may file written objections 4 || with the court and serve a copy on all parties. Such a document should be captioned 5 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 6 || failure to file objections within the specified time may waive the right to appeal the District 7 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 8 | Dated: September 24, 2021 Foci) Aharon 10 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 Perk1451.fifp 16 17 18 19 20 21 22 23 24 25 26 27 28