(PC) Christopher Lipsey v. Diaz ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER LIPSEY, JR., Case No. 1:21-cv-00787-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO 13 v. EXHAUST ADMINISTRATIVE REMEDIES 14 R. DIAZ, et al., 14-DAY DEADLINE 15 Defendants. Clerk of the Court to Assign a District Judge 16 17 Plaintiff Christopher Lipsey, Jr., is a state prisoner proceeding pro se in this civil rights 18 action. He alleges the water provided to him at Kern Valley State Prison is contaminated. (Doc. 19 1.) In his complaint, Plaintiff indicates that he has filed an administrative grievance regarding his 20 claims, but that he has not yet received a decision from the California Department of Corrections 21 and Rehabilitation (CDCR) Office of Appeals. (See id. at 3, 9.) Therefore, on November 22, 22 2021, the Court issued an order to show cause, within 21 days, why this action should not be 23 dismissed for failure to exhaust. (Doc. 11.) Although more than 21 have passed, Plaintiff has 24 failed to respond to the order to show cause. 25 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 26 respect to prison conditions under . . . any other Federal law . . . by a prisoner confined in any jail, 27 prison, or other correctional facility until such administrative remedies as are available are 28 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 1 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 2 omitted). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 3 Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 4 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 5 Inmates are required to “complete the administrative review process in accordance with 6 the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 7 court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). In California, state-inmate grievances 8 regarding non-healthcare matters are subject to two levels of review. See Cal. Code Regs. tit. 15, 9 § 3481(a). In general, prisoners must receive a disposition from the CDCR Office of Appeals 10 before administrative remedies are deemed exhausted. See id. §§ 3483(m)(1), 3486(m); but see id. 11 § 3483(m)(2). 12 Generally, failure to exhaust is an affirmative defense that the defendant must plead and 13 prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is 14 clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 15 Here, it is clear on the face of his complaint that Plaintiff failed to exhaust administrative 16 remedies prior to filing suit. Accordingly, the Court RECOMMENDS that this action be 17 DISMISSED without prejudice. The Court DIRECTS the Clerk of the Court to assign a district 18 judge to this action. 19 These Findings and Recommendations will be submitted to the United States District 20 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 21 service of these Findings and Recommendations, Plaintiff may file written objections with the 22 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 23 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 24 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 25 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 26 IT IS SO ORDERED. 27 28 Dated: January 14, 2022 /s/ Sheila K. Oberto . 1 UNITED STATES MAGISTRATE JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28