(PC) Henderson v. United States ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCELLUS HENDERSON, 1:21-cv-00932-GSA-PC 12 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE ISSUED ON FEBRUARY 13 v. 23, 2022 14 UNITED STATES, et al., (ECF No. 6.) 15 Defendants. 16 17 18 19 20 Marcellus Henderson (“Plaintiff”) is a federal prisoner proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 22 (1971). On June 14, 2021, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) 23 On February 23, 2022, the court issued an order requiring Plaintiff to show cause, within 24 thirty days, why this case should not be dismissed based on Plaintiff’s failure to exhaust 25 administrative remedies before filing this lawsuit in violation of 42 U.S.C. § 1997e(a). On March 26 9, 2022, Plaintiff filed a response to the court’s order. (ECF No. 21.) Plaintiff alleges and has 27 submitted evidence that he completed the administrative remedy process available at the prison. 28 1 While this order is not a finding that Plaintiff exhausted all of his available remedies for 2 the claims in this case before filing suit, the court finds that Plaintiff’s failure to exhaust remedies 3 is no longer clear and therefore the court shall not resolve this issue at this stage of the 4 proceedings. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (where failure to 5 exhaust is clear from face of complaint, case is subject to dismissal for failure to state a claim 6 under Rule 12(b)(6); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s 7 concession to nonexhaustion is a valid ground for dismissal. . . .”) (overruled on other grounds 8 by Albino, 747 F.3d at 1168-69). Accordingly, the court’s order to show cause, issued on 9 February 23, 2022, shall be discharged. 10 Based on the foregoing, IT IS HEREBY ORDERED that: 11 1. The court’s order to show cause, issued February 23, 2022, is DISCHARGED; 12 and 13 2. The court shall screen Plaintiff’s Complaint in due course. 14 IT IS SO ORDERED. 15 16 Dated: June 11, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28