(PC) Wren v. Gamboa ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY CHARLES WREN, Case No. 1:21-cv-00753-SKO (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION 13 v. SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE 14 GAMBOA, et al., REMEDIES 15 Defendants. 21-DAY DEADLINE 16 17 Plaintiff Jeffrey Charles Wren is a state prisoner proceeding pro se in this civil rights 18 action. In his first amended complaint, Plaintiff indicates that he has not filed an administrative 19 grievance regarding any of his claims. (Doc. 18 at 3, 4, 5.) 20 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 21 respect to prison conditions under . . . any other Federal law . . . by a prisoner confined in any jail, 22 prison, or other correctional facility until such administrative remedies as are available are 23 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 24 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 25 omitted). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 26 Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 27 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 28 /// 1 Inmates are required to “complete the administrative review process in accordance with 2 the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 3 court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). In California, state-inmate grievances are 4 subject to two levels of review. See Cal. Code Regs. tit. 15, §§ 3481(a), 3999.226(a)(1). Prisoners 5 must generally receive a disposition from the second level of review before administrative 6 remedies are deemed exhausted. See id. §§ 3483(m)(1), 3486(m), 3999.226(h); but see id. § 7 3483(m)(2). 8 In general, failure to exhaust is an affirmative defense that the defendant must plead and 9 prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is 10 clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 11 Here, the face of the complaint reveals that Plaintiff failed to exhaust administrative his 12 remedies prior to filing suit. Accordingly, the Court ORDERS Plaintiff, within 21 days of the 13 date of service of this order, to show cause in writing why this action should not be dismissed for 14 his failure to exhaust. Alternatively, Plaintiff may file a notice of voluntary dismissal. Failure to 15 comply with this order will result in a recommendation that this action be dismissed. 16 IT IS SO ORDERED. 17 18 Dated: December 3, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28