(PC) Barber v. Reyna ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES EUGENE BARBER, Case No. 1:22-cv-01594-BAM (PC) 12 Plaintiff, ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY ACTION SHOULD NOT BE 13 v. DISMISSED, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST PRIOR TO FILING 14 REYNA, SUIT 15 Defendant. (ECF No. 12) 16 TWENTY-ONE (21) DAY DEADLINE 17 18 Plaintiff James Eugene Barber (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was initiated 20 on December 13, 2022, (ECF No. 1), and Plaintiff filed a first amended complaint on February 21 13, 2023, (ECF No. 12). 22 Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be 23 brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 24 prisoner confined in any jail, prison, or other correctional facility until such administrative 25 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust 26 the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 27 (2007); McKinney v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002). Exhaustion is required 28 regardless of the relief sought by the prisoner and regardless of the relief offered by the process, 1 Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits 2 relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002). 3 In the first amended complaint, Plaintiff states that there is an inmate appeal or 4 administrative remedy process available at his institution, but that he has not filed an appeal or 5 grievance concerning all of the facts contained in the complaint, and has not completed the 6 process. (ECF No. 12, p. 2.) Plaintiff further explains that he has been advised that his initial 7 grievance from November 1, 2022 was not received, therefore he had to file a separate grievance 8 and is waiting for the response. (Id.) Based on this information, it appears Plaintiff filed suit 9 prematurely without first exhausting his administrative remedies in compliance with the PLRA, 10 section 1997e(a). 11 Accordingly, Plaintiff is HEREBY ORDERED to show cause within twenty-one (21) 12 days from the date of service of this order why this action should not be dismissed, without 13 prejudice, for failure to exhaust prior to filing suit. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 14 (9th Cir. 2014) (in rare cases where a failure to exhaust is clear from the face of the complaint, it 15 may be dismissed for failure to state a claim); Medina v. Sacramento Cty. Sheriff’s Dep’t, No. 16 2:16-cv-0765 AC P, 2016 WL 6038181, at *3 (E.D. Cal. Oct. 14, 2016) (“When it is clear from 17 the face of the complaint and any attached exhibits that a plaintiff did not exhaust his available 18 administrative remedies before commencing an action, the action may be dismissed on screening 19 for failure to state a claim.”); Lucas v. Dir. of Dep’t. of Corrs., 2015 WL 1014037, at *4 (E.D. 20 Cal. Mar. 6, 2015) (relying on Albino and dismissing complaint without prejudice on screening 21 due to plaintiff’s failure to exhaust administrative remedies prior to filing suit). 22 IT IS SO ORDERED. 23 24 Dated: February 17, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28