(PC) Ford v. Fiori ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCEL D. FORD, Case No. 1:23-cv-00950-BAM (PC) 12 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE 13 v. (ECF No. 9) 14 FIORI, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE 15 Defendant. FINDINGS AND RECOMMENDATIONS 16 REGARDING DISMISSAL OF ACTION FOR FAILURE TO EXHAUST 17 ADMINISTRATIVE REMEDIES 18 FOURTEEN (14) DAY DEADLINE 19 20 Plaintiff Marcel D. Ford (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was initiated on June 22 26, 2023. (ECF No. 1.) 23 On July 17, 2023, the Court issued an order requiring Plaintiff to show cause, within 24 twenty-one days, why this action should not be dismissed for failure to exhaust administrative 25 remedies. (ECF No. 9.) On July 27, 2023, Plaintiff filed a response to the order to show cause. 26 (ECF No. 10.) 27 /// 28 /// 1 I. Legal Standard 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 5 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 6 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. 7 § 1915(e)(2)(B)(ii). 8 Pursuant to the Prison Litigation Reform Act of 1996, “[n]o action shall be brought with 9 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 10 confined in any jail, prison, or other correctional facility until such administrative remedies as are 11 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 12 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney 13 v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002). Exhaustion is required regardless of the 14 relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 15 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison 16 life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 17 In rare cases where a failure to exhaust is clear from the face of the complaint, it may be 18 dismissed for failure to state a claim. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 19 2014); Medina v. Sacramento Cty. Sheriff’s Dep’t, No. 2:16-cv-0765 AC P, 2016 WL 6038181, at 20 *3 (E.D. Cal. Oct. 14, 2016) (“When it is clear from the face of the complaint and any attached 21 exhibits that a plaintiff did not exhaust his available administrative remedies before commencing 22 an action, the action may be dismissed on screening for failure to state a claim.”); Lucas v. Dir. of 23 Dep’t. of Corrs., 2015 WL 1014037, at *4 (E.D. Cal. Mar. 6, 2015) (relying on Albino and 24 dismissing complaint without prejudice on screening due to plaintiff’s failure to exhaust 25 administrative remedies prior to filing suit). 26 II. Discussion 27 In the complaint, Plaintiff states that there is an inmate appeal or administrative remedy 28 process available at his institution, that he submitted a request for administrative relief on his 1 claims, and that he appealed his request for relief for his claims to the highest level. (ECF No. 1, 2 pp. 3–5.) Plaintiff further explains that all appeals have been sent to the Chief of Appeals Office 3 in Sacramento, California, the highest level. (Id.) Based on this information, the alleged incident 4 date of May 18, 2023, and the signature on the complaint dated June 7, 2023, it appeared Plaintiff 5 filed suit prematurely without first exhausting his administrative remedies in compliance with the 6 PLRA, section 1997e(a). 7 In his response to the Court’s order to show cause, Plaintiff filed a response which 8 primarily discusses the merits of his claims. (ECF No. 10.) The response also includes a copy of 9 an Office of Grievances Decision dated July 1, 2023, granting Plaintiff’s claim. (ECF No. 10, p. 10 6.) In the corner of that document, a note in Plaintiff’s handwriting states “Case filed 6-26-23 11 Appeal Granted on 7-1-23 (very close) Marcel Ford F-64879 7-20-23.” (Id.) 12 Based on the foregoing, it appears that as of June 26, 2023, the date Plaintiff filed the 13 complaint, Plaintiff had not yet exhausted his administrative remedies. Further, Plaintiff’s 14 handwritten note indicates his awareness that, while close in time, the July 1, 2023 decision was 15 received too late for the June 26, 2023 filing of the complaint. Therefore, because Plaintiff had 16 not yet received a decision, Plaintiff failed to exhaust his administrative remedies before filing 17 this action. Plaintiff is informed that a dismissal of this action, without prejudice, does not 18 prevent him from re-filing this action in this Court at a later date, which would be after he 19 completed exhaustion of his administrative remedies. 20 III. Order and Recommendation 21 Accordingly, the order to show cause issued on July 17, 2023, (ECF No. 9), is HEREBY 22 DISCHARGED and the Clerk of the Court is DIRECTED to randomly assign a District Judge to 23 this action. 24 Furthermore, it is HEREBY RECOMMENDED that this action be dismissed, without 25 prejudice, based on Plaintiff’s failure to exhaust administrative remedies prior to filing suit. 26 These findings and recommendations will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 28 (14) days after being served with these findings and recommendations, Plaintiff may file written 1 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 2 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 3 specified time may result in the waiver of the “right to challenge the magistrate’s factual 4 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 5 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 IT IS SO ORDERED. 7 8 Dated: July 28, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28