(PC) Powell v. Saradeth ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARIAN MANUEL POWELL, No. 2:23-cv-00946-DAD-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 SARADETH, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. In a complaint dated April 17, 2023, plaintiff alleges that on January 30, 2023, an 19 unidentified official at the California Health Care Facility raped him, repeatedly punched him in 20 the solar plex, and attempted to murder him by preventing him from breathing. ECF No. 1 at 4. 21 Plaintiff claims he was then forcibly medicated in an effort to stop him from telling “about rapes 22 and wrongs done by Mule Creek, Salinas Valley Prisons, Vacaville, Solano, and Stockton 23 Facilities.” Id. For the reasons stated below, plaintiff will be required to show cause why this 24 case should not be dismissed, without prejudice, for failure to exhaust administrative remedies 25 prior to filing suit. 26 Because plaintiff is a prisoner suing over the conditions of his confinement, his claims are 27 subject to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Under the PLRA, 28 “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or 1 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 2 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Porter v. 3 Nussle, 534 U.S. 516, 520 (2002) (“§ 1997e(a)’s exhaustion requirement applies to all prisoners 4 seeking redress for prison circumstances or occurrences”). “[T]hat language is ‘mandatory’: An 5 inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent 6 exhaustion of available administrative remedies.” Ross v. Blake, 578 U.S. 632, 638 (2016) 7 (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). 8 California inmates initiate the exhaustion process by submitting a written grievance that 9 disputes a policy, decision, action, condition, or omission by CDCR or CDCR staff. Cal. Code 10 Regs. tit. 15, § 3481(a). The grievance process, as defined by California regulations, has two 11 levels of review. Id. If the written grievance is denied, the inmate must submit a written appeal 12 to the Office of Appeals. Id. §§ 3481(a), 3484(a). Administrative remedies generally are 13 exhausted upon completion of the review process by the Office of Appeals. See id. §§ 3481(a), 14 3483(l), 3485(l). 15 Plaintiff concedes that he did not submit a request for relief to the highest level of review. 16 ECF No. 1 at 4. His explanation for his failure in this regard is that he “believe[s] [he] may be 17 kidnapped and [his] mail may not go out to be read by those who need to[,] as [his] appeals for 18 release lie on the return papers.” Id. Inmates, however, must complete the exhaustion process 19 regardless of any “special circumstances.” See Ross, 278 U.S. at 641 (noting that the “PLRA’s 20 history (just like its text) . . . refutes a ‘special circumstances’ exception to its rule of 21 exhaustion.”). Further, plaintiff’s fear of being kidnapped does not render the administrative 22 appeals process “unavailable.” See id. at 643-44 (identifying three circumstances under which a 23 remedy is unavailable: (1) the remedy “operates as a simple dead end,” (2) the “administrative 24 scheme ... [is] so opaque that .... no ordinary prisoner can discern or navigate it,” and (3) “prison 25 administrators thwart inmates from taking advantage of a grievance process through machination, 26 misrepresentation, or intimidation.”). Therefore, plaintiff will be required to show cause why this 27 case should not be dismissed, without prejudice, for failure to exhaust administrative remedies 28 prior to filing suit. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (prisoner’s 1 | concession to nonexhaustion 1s valid ground for dismissal of an action, so long as no exception 2 || applies), overruled on other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc). 3 Accordingly, the court ORDERS plaintiff, within 21 days of the date of service of this 4 || order, to show cause in writing why this action should not be dismissed for his failure to exhaust. 5 || Alternatively, plaintiff may file a notice of voluntary dismissal. 6 So ordered. 7 | Dated: July 11, 2023. □□ PDEA EDMUND F. BRENNAN 8 UNITED STATES MAGISTRATE JUDGE 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28