(PC) Jackson v. Shirley ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AARON JACKSON, Case No. 1:23-cv-00509-EPG (PC) 12 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE v. WHY THIS ACTION SHOULD NOT BE 13 HEATHER SHIRLEY, et al., DISMISSED WITHOUT PREJUDICE FOR 14 FAILURE TO EXHAUST Defendants. 15 TWENTY-ONE-DAY DEADLINE 16 17 18 Aaron Jackson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action. Plaintiff filed the operative complaint on May 30, 2023. (ECF No. 20 3). 21 It appears from the face of the complaint that Plaintiff did not exhaust his available 22 administrative remedies before filing this action. While there are several marks, Plaintiff 23 appears to admit that there is an available administrative remedy. (ECF No. 3, p. 2). 24 Additionally, Plaintiff asserts that he filed a 602 concerning all facts in his complaint, but that 25 he is still waiting on the decision. (Id.). 26 As Plaintiff appears to admit that there is an available remedy that he had not yet 27 exhausted at the time he filed the operative complaint, the Court will order Plaintiff to file a 28 response within twenty-one days, explaining why this action should not be dismissed for failure 1 to exhaust available administrative remedies. Such a dismissal would be without prejudice, so 2 that Plaintiff may be able to refile the action after exhausting administrative remedies, to the 3 extent those remedies are still available to him. 4 I. LEGAL STANDARDS 5 The California prison grievance system has two levels of review. Cal. Code Regs. tit. 6 15, §§ 3483, 3485. “Completion of the review process by the Institutional or Regional Office 7 of Grievances resulting in a decision of ‘identified as staff misconduct,’ ‘pending legal matter,’ 8 or ‘time expired’ in accordance with subsections (g)(8) through (g)(10) of [] section [3483] 9 does constitute exhaustion of all administrative remedies available to a claimant within the 10 department.” Cal. Code Regs. tit. 15, § 3483(l)(2). Additionally, “[c]ompletion of the review 11 process by the Office of Appeals resulting in a decision of ‘denied,’ ‘granted,’ ‘no jurisdiction,’ 12 ‘identified as staff misconduct,’ ‘pending legal matter,’ or ‘time expired’ in accordance with 13 subsections (g)(1) through (g)(3) and (g)(8) through (g)(10) of [] section 3485 constitutes 14 exhaustion of all administrative remedies available to a claimant within the department.” Cal. 15 Code Regs. tit. 15, § 3485(l)(1). 16 However, “[c]ompletion of the review process by the Institutional or Regional Office of 17 Grievances resulting in a decision of ‘denied,’ ‘granted,’ ‘no jurisdiction,’ ‘redirected,’ 18 ‘reassigned,’ or ‘rejected’ in accordance with subsections (g)(1) through (g)(6) of [] section 19 [3483] does not constitute exhaustion of all administrative remedies available to a claimant 20 within the department. Nor does completion of the review process resulting in a ‘disallowed’ 21 decision in accordance with subsection (g)(7) of this section….” Cal. Code Regs. tit. 15, § 22 3483(l)(1). Additionally, “[c]ompletion of the review process by the Office of Appeals 23 resulting in a decision to ‘redirect,’ ‘reassign,’ or ‘reject’ a claim in accordance with 24 subsections (g)(4) through (g)(6) of [] section [3485] does not constitute exhaustion of all 25 administrative remedies available to a claimant within the department. Nor does completion of 26 the review process resulting in a ‘disallowed’ decision in accordance with subsection (g)(7) of 27 this section….” Cal. Code Regs. tit. 15, § 3485(l)(2). 28 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 1 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 2 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 3 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 4 Prisoners are required to exhaust the available administrative remedies prior to filing the 5 operative complaint. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 6 1198, 1199-1201 (9th Cir. 2002) (per curiam); Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022). 7 The exhaustion requirement applies to all prisoner suits relating to prison life. Porter v. Nussle, 8 534 U.S. 516, 532 (2002). Exhaustion is required regardless of the relief sought by the prisoner 9 and regardless of the relief offered by the process, unless “the relevant administrative procedure 10 lacks authority to provide any relief or to take any action whatsoever in response to a 11 complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); see also Ross v. Blake, 578 U.S. 12 632, 639-40, 642 (2016). 13 As discussed in Ross, 578 U.S. at 648, there are no “special circumstances” exceptions 14 to the exhaustion requirement. The one significant qualifier is that “the remedies must indeed 15 be ‘available’ to the prisoner.” Id. at 639. The Ross Court described this qualification as 16 follows: 17 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a 18 simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. See 532 U.S., at 736, 19 738, 121 S.Ct. 1819…. 20 Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use…. 21 And finally, the same is true when prison administrators thwart 22 inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation…. As all those 23 courts have recognized, such interference with an inmate’s pursuit of relief renders the administrative process unavailable. 24 And then, once again, § 1997e(a) poses no bar. 25 Id. at 643-44 (footnote omitted). 26 “When prison officials improperly fail to process a prisoner’s grievance, the prisoner is 27 deemed to have exhausted available administrative remedies.” Andres v. Marshall, 867 F.3d 28 1 1076, 1079 (9th Cir. 2017). 2 If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal 3 without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S. 4 at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). 5 II. ANALYSIS 6 It appears from the face of the complaint that Plaintiff did not exhaust his available 7 administrative remedies before filing this action. Plaintiff appears to state that there is an 8 administrative remedy process available to him, and that he filed a 602 concerning all facts in 9 his complaint. (ECF No. 3, p. 2). However, he also states that the process is not complete and 10 that he is “still waiting on the decision.” (Id.). 11 Accordingly, the Court will order Plaintiff to show cause why this action should not be 12 dismissed for failure to exhaust available administrative remedies. The Court notes that this 13 dismissal would be without prejudice. Therefore, if Plaintiff exhausts his administrative 14 remedies in the future, he could refile the complaint. 15 The Court also welcomes Plaintiff to file any documents he believes demonstrates that 16 he has exhausted all available administrative remedies. 17 III. ORDER TO SHOW CAUSE 18 Accordingly, it is HEREBY ORDERED that, within twenty-one (21) days from the 19 date of service of this order, Plaintiff shall show cause why this action should not be dismissed, 20 without prejudice, for failure to exhaust available administrative remedies. Plaintiff’s response 21 may also contain any documents Plaintiff believes are responsive to the exhaustion issue. If 22 Plaintiff fails to file a response the Court may recommend to a district judge that Plaintiff’s 23 complaint be dismissed without prejudice for failure to exhaust administrative remedies. 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 1 Again, if Plaintiffs case is dismissed for failure to exhaust administrative remedies, 2 || Plaintiff may refile the complaint after he has exhausted administrative remedies to the extent 3 || those remedies are still available to him. 4 5 IT IS SO ORDERED. 6 || Dated: _ July 5, 2023 [see hey —— 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