(PC) Burgess v. Newsom ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY ALAN BURGESS, Case No. 1:21-cv-00077-SAB (PC) 12 Plaintiff, ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY THIS ACTION 13 v. SHOULD NOT BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO EXHAUST 14 GAVIN NEWSOM, et al., ADMINISTRATIVE REMEDIES 15 Defendants. THIRTY DAY DEADLINE 16 17 Jeffrey Alan Burgess (“Plaintiff”), a state prisoner, is proceeding pro se in this civil rights 18 action pursuant to 42 U.S.C. § 1983. On January 20, 2021, Plaintiff filed a complaint alleging 19 deliberate indifference by prison officials because he contracted COVID-19 and due process 20 violations because his inmate grievance was not responded to within the sixty day guidelines 21 provided by Title 15. 22 I. 23 SCREENING REQUIREMENT 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 26 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 27 legally “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the 3 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 4 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 7 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 8 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 9 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 10 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 11 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 12 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 13 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 14 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 15 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 16 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 17 F.3d at 969. 18 II. 19 EXHAUSTION OF ADMINISTRATIVE REMEDIES 20 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 21 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 22 confined in any jail, prison, or other correctional facility until such administrative remedies as 23 are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the 24 available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); 25 McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required 26 regardless of the relief sought by the prisoner and regardless of the relief offered by the process, 27 Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits 1 Prisoners are required to exhaust before bringing suit. Booth, 532 U.S. at 741. From the 2 face of Plaintiff’s Complaint, it is clear that Plaintiff filed suit prematurely and in such instances, 3 the case may be dismissed. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) 4 (where failure to exhaust is clear from face of complaint, case is subject to dismissal for failure 5 to state a claim under Rule 12(b)(6)); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A 6 prisoner’s concession to nonexhaustion is a valid ground for dismissal....”) (overruled on other 7 grounds by Albino, 747 F.3d at 1168-69); see also Nordstrom v. Ryan, 762 F.3d 903, 908 (9th 8 Cir. 2014) (“Dismissal for failure to state a claim under § 1915A ‘incorporates the familiar 9 standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 10 12(b)(6).’ ”) (quoting Wilhelm, 680 F.3d at 1121). 11 It is clear from the face of Plaintiff’s complaint that he has not exhausted administrative 12 remedies pursuant to the Prison Litigation Reform Act, 41 U.S.C. § 1997 (e)(a), before filing this 13 lawsuit. Plaintiff states that he submitted his appeal to the third level on January 17, 2021, and it 14 has been past the sixty days provided in the regulations. (Compl. at 6.) It is clear that Plaintiff 15 appeal was still pending review at the third level at the time that Plaintiff filed the complaint in 16 this action three days later on January 20, 2021. Plaintiff states that he has been waiting for a 17 response, but no inmates in CDCR will get a 60 day reply notice from Sacramento because 18 CDCR “does not play” “fair by its own rules.” (Id.) Plaintiff argues that he is able to bring this 19 action because CDCR has not complied with the time limits of Title 15. Thus, it appears on the 20 face of the complaint that Plaintiff failed to exhaust his administrative remedies before filing 21 suit. Accordingly, Plaintiff shall be required to show cause why this case should not be 22 dismissed, without prejudice, for failure to exhaust remedies prior to filing suit. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 Il. 2 ORDER 3 Based on the foregoing, it is HEREBY ORDERED that: 4 1. Plaintiff shall show cause in writing within thirty (30) days of the date of service 5 of this order as to why this case should not be dismissed for Plaintiffs failure to 6 exhaust administrative remedies before filing suit; and 7 2. The failure to respond to this order will result in a recommendation to a district 8 judge to dismiss this action without prejudice. 9 10 IT IS SO ORDERED. DAM Le 11 | Dated: _February 18, 2021 _ OO UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28