(PC) Roberts v. CSP Sacramento ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID NATHANIEL ROBERTS, No. 2:22-cv-2102-EFB (PC) 11 Plaintiff, 12 v. ORDER 13 CALIFORNIA STATE PRISON, SACRAMENTO, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. In a complaint dated October 9, 2022, plaintiff alleges that on September 13, 18 2022, officials at California State Prison, Sacramento violated his Eighth Amendment rights by 19 using excessive force and denying him medical care. ECF No. 1 at 3-4. For the reasons stated 20 below, plaintiff will be required to show cause why this case should not be dismissed, without 21 prejudice, for failure to exhaust administrative remedies prior to filing suit. 22 Because plaintiff is a prisoner suing over the conditions of his confinement, his claims are 23 subject to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Under the PLRA, 24 “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or 25 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 26 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Porter v. 27 Nussle, 534 U.S. 516, 520 (2002) (“§ 1997e(a)’s exhaustion requirement applies to all prisoners 28 1 | seeking redress for prison circumstances or occurrences”). “[T]hat language is ‘mandatory’: An 2 || inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent 3 | exhaustion of available administrative remedies.” Ross v. Blake, 578 U.S. 632, 638 (2016) 4 | (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). 5 California inmates initiate the exhaustion process by submitting a written grievance that 6 || disputes a policy, decision, action, condition, or omission by CDCR or CDCR staff. Cal. Code 7 || Regs. tit. 15, § 3481(a). The grievance process, as defined by California regulations, has two 8 | levels of review. /d. Ifthe written grievance is denied, the inmate must submit a written appeal 9 || to the Office of Appeals. /d. §§ 3481(a), 3484(a). Administrative remedies generally are 10 || exhausted upon completion of the review process by the Office of Appeals. See id. §§ 3481(a), 11 | 3483), 3485(). 12 Plaintiff concedes that he has not yet submitted his request for administrative relief to the 13 | highest level of review because it is “‘still early in the ‘602 process.’” /d. at 3. Therefore, plaintiff 14 || will be required to show cause why this case should not be dismissed, without prejudice, for 15 || failure to exhaust administrative remedies prior to filing suit. See Wyatt v. Terhune, 315 F.3d 16 | 1108, 1120 (9th Cir. 2003) (prisoner’s concession to nonexhaustion is valid ground for dismissal 17 || of an action, so long as no exception applies), overruled on other grounds by Albino v. Baca, 747 18 | F.3d 1162 (9th Cir. 2014) (en banc). 19 Accordingly, the court ORDERS plaintiff, within 21 days of the date of service of this 20 || order, to show cause in writing why this action should not be dismissed for his failure to exhaust. 21 || Alternatively, plaintiff may file a notice of voluntary dismissal. 22 So ordered. 23 Dated: January 5, 2023. □□ PDEA EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 25 26 27 28