(PC) Juengain v. Ramirez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IKEELY JUENGAIN, Case No. 1:22-cv-00064-HBK (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 14 A. RAMIREZ, FOURTEEN-DAY DEADLINE 15 Defendant. 16 17 Ikeely Juengain is a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action. (Doc. Nos. 1, 8). Plaintiff acknowledges on the face of his Complaint that he has 19 not exhausted his administrative remedies. (Doc. No. 1 at 3). 20 Under 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 are 23 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is condition precedent to filing a 24 civil rights claim. Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also McKinney v. Carey, 311 25 F.3d 1198, 1200 (9th Cir. 2002) (“Congress could have written a statute making exhaustion a 26 precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to 27 suit.” (citation omitted)). The exhaustion requirement “applies to all inmate suits about prison 28 life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the nature of the relief sought by the 1 | prisoner or the relief offered by the prison’s administrative process is of no consequence. Booth 2 | v. Churner, 532 U.S. 731, 741 (2001). And, because the PLRA’s text and intent requires 3 | “proper” exhaustion, a prisoner does not satisfy the PLRA’s administrative grievance process if 4 | he files an untimely or procedurally defective grievance or appeal. Woodford, 548 U.S. at 93. A 5 | prisoner need not plead or prove exhaustion. Instead, it is an affirmative defense that must be 6 | proved by defendant. Jones v. Bock, 549 U.S. 199, 211 (2007). A prison’s internal grievance 7 | process, not the PLRA, determines whether the grievance satisfies the PLRA exhaustion 8 | requirement. /d. at 218. However, courts may dismiss a claim if failure to exhaust is clear on the 9 | face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 10 Here, the face of the complaint reveals Plaintiff did not exhaust his administrative 11 | remedies prior to filing suit. Accordingly, within fourteen days of the date of service of this 12 | order, Plaintiff shall show cause in writing why this action should not be dismissed for failure to 13 | exhaust his administrative remedies. Plaintiff is warned that if he commenced this action before 14 | exhausting his administrative remedies, a dismissal on this basis counts as a strike under 1915(g). 15 | El-Shaddai v. Zamora, 833 F.3d 1036, 1043-44 (9th Cir. 2016). Alternatively, Plaintiff may file 16 || anotice of voluntarily dismissal under Fed. R. Civ. P. 41 to avoid a strike and attempt to exhaust 17 | his administrative remedies. Failure to respond to this Order will result in the recommendation 18 | that this action be dismissed. 19 Accordingly, it is ORDERED: 20 1. Within fourteen (14) days of service of this order, Plaintiff shall show cause why 21 | this action should not be dismissed for his failure to exhaust his administrative remedies before 22 | filing suit or file a notice of voluntarily dismissal under Fed. R. Civ. P. 41. 23 2. Plaintiffs failure to timely to respond to this order will result in the recommendation 24 | that this action be dismissed for failure to comply with a court order or prosecute this action. °° | Dated: _ May 16, 2022 law Nh. fareh Sass □□□ 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 28