(PC) Arreguin v. Jimenez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARIO RENE ARREGUIN, Case No. 1:22-cv-01575-CDB (PC) 12 Plaintiff, REVISED ORDER TO SHOW CAUSE WHY 13 v. ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE 14 A. JIMENEZ, et al., REMEDIES 15 Defendants. 21-DAY DEADLINE 16 17 Plaintiff Mario Rene Arreguin is a state prisoner proceeding pro se and in forma pauperis 18 in this civil rights action. 19 RELEVANT PROCEDURAL BACKGROUND 20 Plaintiff filed his complaint with this Court on December 7, 2022. (Doc. 1.) That same 21 date, Plaintiff filed an Application to Proceed In Forma Pauperis by Prisoner. (Doc. 2.) 22 On December 7, 2022, this Court issued its First Informational Order In Prisoner/Civil 23 Detainee Civil Rights Case. (Doc. 4.) 24 On December 9, 2022, the undersigned issued an Order to Show Cause (OSC) Why 25 Action Should Not Be Dismissed for Failure to Exhaust Administrative Remedies. (Doc. 5.) 26 Plaintiff was afforded 21 days within which to respond to the OSC. (Id.) That same date, the 27 Court also issued its Order Granting Application to Proceed In Forma Pauperis (IFP) and Order 28 Directing Payment of Inmate Filing Fee by California Department of Corrections. (Doc. 7.) 1 On December 19, 2022, the OSC was returned by the United States Postal Service marked 2 “Undeliverable.” (Docket Entry Dated 12/19/22.) There is no indication, however, that the Order 3 granting IFP status was returned by the postal service. 4 On December 23, 2022, Plaintiff filed a Notice of Change of Address. (Doc. 8.) Plaintiff 5 did not enter information in the “OLD ADDRESS” section of the form; rather, he completed the 6 “NEW ADDRESS” section of the form, indicating the address already on file with the Court, to 7 wit: California Men’s Colony State Prison, P.O. Box 8101, San Luis Obispo, CA 93408-8101. 8 (Cf. Doc. 1 to Doc. 8 [same addresses provided].)1 9 Despite Plaintiff’s apparently unchanged address, it is clear Plaintiff did not receive the 10 OSC issued on December 9, 2022, because that document was returned to the Court. Therefore, 11 the Court issues this revised OSC and provides Plaintiff the opportunity to respond in writing. 12 DISCUSSION AND ORDER 13 In his complaint, Plaintiff indicates that he has not appealed his grievances or requests for 14 relief to the highest level for any of his three claims. (See Doc. 1 at 3-5.) 15 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 16 respect to prison conditions under . . . any other Federal law . . . by a prisoner confined in any jail, 17 prison, or other correctional facility until such administrative remedies as are available are 18 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 19 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 20 omitted). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 21 Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 22 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 23 // 24 25 1 The Court may take judicial notice of public information stored on the CDCR inmate locator website. See In re Yahoo Mail Litig., 7 F.Supp.3d 1016, 1024 (N.D. Cal. 2014) (court may take judicial notice of 26 information on “publicly accessible websites” not subject to reasonable dispute); Louis v. McCormick & Schmick Restaurant Corp., 460 F.Supp.2d 1153, 1155 fn.4 (C.D. Cal. 2006) (court may take judicial 27 notice of state agency records). The CDCR’s Inmate Locator website, accessed January 3, 2023, reflects Plaintiff is currently housed at the California Men’s Colony. 28 https://inmatelocator.cdcr.ca.gov/Details.aspx?ID=BS8048 1 Inmates are required to “complete the administrative review process in accordance with 2 | the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 3 | court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). In California, state-inmate grievances are 4 | subject to two levels of review. See Cal. Code Regs. tit. 15, $$ 3481(a), 3999.226(a)(1). Prisoners 5 | must generally receive a disposition from the second level of review before administrative 6 || remedies are deemed exhausted. See id. 8§ 3483(m) 1), 3486(m), 3999.226(h); but see id. § 7 | 3483Gn)(2). 8 In general, failure to exhaust is an affirmative defense that the defendant must plead and 9 | prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is 10 | clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 11 Here, it is clear on the face of his complaint that Plaintiff failed to exhaust administrative 12 | remedies prior to filing suit. Accordingly, the Court ORDERS Plaintiff, within 21 days of the 13 | date of service of this order, to show cause in writing why this action should not be dismissed for 14 | his failure to exhaust. Alternatively, Plaintiff may file a notice of voluntary dismissal. 15 Failure to comply with this order will result in a recommendation that this action be 16 | dismissed. 17 | IT IS SO ORDERED. 'S |) Dated: _ January 4, 2023 | br Pr 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28