(PC) Dalke v. King ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA JASON DALKE, ) Case No.: 1:20-cv-00534-AWI-SAB (PC) ) 12 Plaintiff, ) ) ORDER REGARDING PLAINTIFF’S MOTION 13 v. ) RELATING TO EXHAUSTION OF ADMINISTRATIVE REMEDIES 14 KING CLARK, et al., ) ) (ECF No. 71) 15 Defendants. ) ) 16 ) 17 Plaintiff Joshua Jason Dalke is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion regarding exhaustion of the administrative 20 remedies, filed February 25, 2021. 21 On February 8, 2021, the Court issued the discovery and scheduling order and set the deadline 22 to file any exhaustion-related motion for summary judgment on or before May 8, 2021. (ECF No. 66.) 23 In the instant motion, Plaintiff submits that “[i]t is unclear if the court is asking for proof of 24 exhausted 602 and evidence of attempted exhaustion of other 602s relevant to this case….” (ECF No. 25 71 at 1.) Plaintiff is advised the failure to exhaust is an affirmative defense, and Defendants bear the 26 burden of raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007); 27 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). Therefore, it is not necessary to plead or 28 demonstrate exhaustion of the administrative remedies. If Defendants file a motion for summary 1 || judgment based on the failure to exhaust the administrative remedies, Plaintiff may at that time prese: 2 || his arguments and evidence in opposition. Accordingly, Plaintiff's motion relating to exhaustion of 3 || the administrative remedies is disregarded as unnecessary. 4 5 || IT IS SO ORDERED. Al (ee 6 ll Dated: _ February 26, 2021 OF 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28