(PC) Rayshivers v. Luiz ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TOMMY RAYSHIVERS, No. 1:23-cv-01535 GSA (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW CAUSE WHY THIS MATTER SHOULD NOT 13 v. BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 14 LUIZ, et al., PLAINTIFF’S SHOWING OF CAUSE DUE 15 Defendants. DECEMBER 4, 2023 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. ECF Nos. 1, 19 2, 5 (complaint; in forma pauperis application; prisoner trust fund account statement, 20 respectively). This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 21 § 636(b)(1)(B). 22 For the reasons stated below, prior to the Court considering Plaintiff’s application to 23 proceed in forma pauperis and screening the Complaint, Plaintiff will be ordered to show cause 24 why this matter should not be summarily dismissed for failure to exhaust administrative remedies 25 prior to bringing this action. 26 27 28 1 I. IN FORMA PAUPERIS APPLICATION 2 Although Plaintiff has filed an application to proceed in forma pauperis (see ECF No. 2), 3 he has brought this action prior to exhausting his administrative remedies (see generally ECF No. 4 1 at 3-5). As discussed in greater detail below, 42 U.S.C. § 1997e(a) categorically forbids a 5 plaintiff from bringing a Section 1983 suit until administrative remedies have been exhausted. 6 This is true irrespective of whether Plaintiff has submitted an application to proceed in forma 7 pauperis.1 8 Accordingly, the Court will refrain from considering Plaintiff’s in forma pauperis 9 application at this time. Instead, in compliance with federal law, it will first address the 10 exhaustion issue that is identified below. 11 II. THE COMPLAINT 12 Plaintiff names Correctional Officers Luiz and Sanchez of California State Prison – 13 Corcoran (“Corcoran”) as defendants in this action.2 See ECF No. 1 at 1-2. He asserts that his 14 Eighth Amendment right to be free from use of excessive force was violated when a total of seven 15 correctional officers3 beat him after he arrived at Corcoran and had been checked in.4 See 16 generally id. at 3-5. As a result, one of his ribs was broken. Id. He seeks two hundred thousand 17 dollars in damages. ECF No. 1 at 6. 18 In the Complaint, Plaintiff clearly states that he did not exhaust his administrative 19 remedies at Corcoran before he filed this lawsuit, and he provides no legally acceptable excuse 20 for not having done so. See generally ECF No. 1 at 3-5. The Court addresses these threshold 21 issues herein. 22 1 “Neither fee collection nor notice to the adversary is at issue when applying [Section] 23 1997e(a).” Ford v. Johnson, 362 F.3d 395, 399 (7th Cir. 2004) (brackets added). An action is “brought” for purposes of Section 1997e(a) when a complaint is tendered to the district court; not 24 when it is subsequently filed. Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). 2 Plaintiff is currently housed at California State Prison – Sacramento (“CSP-Sacramento”). See 25 ECF No. 1 at 1 (address provided in case caption block). 3 Although the Complaint names Correctional Officers Luiz and Sanchez as defendants, Plaintiff 26 does not specifically refer to either of these individuals in the three claims he raises. See ECF 27 No. 1 at 3-5. Instead, he simply states generally that seven correctional officers assaulted him. See id. 28 4 The Complaint does not state when the assault occurred. 1 III. EXHAUSTION REQUIREMENT 2 A. California Law 3 “[A] party must exhaust administrative remedies before resorting to the courts.” 4 Parthemore v. Col, 221 Cal. App. 4th 1372, 1379 (2013) (brackets added). The requirement that 5 administrative remedies be exhausted applies to grievances filed by prisoners. Wright v. State of 6 California, 122 Cal. App. 4th 659, 665 (2004) (citations omitted). 7 The California prison system's requirements “define the boundaries of proper exhaustion.” 8 Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (quoting Jones v. Bock, 549 U.S. 199, 9 218 (2007)). In order to exhaust, the prisoner is required to complete the administrative review 10 process in accordance with all applicable procedural rules. Woodford v. Ngo, 548 U.S. 81, 90-91 11 (2006). “The California prison grievance system has three levels of review; an inmate exhausts 12 administrative remedies by obtaining a decision at each level.” Reyes v. Smith, 810 F.3d 654, 13 657 (9th Cir. 2016) (citation omitted); see Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010) 14 (citation omitted); see generally Saddozai v. Davis, 35 F. 4th 705, 707 (2022) (stating three-step 15 grievance process needed to comply with PLRA exhaustion process in California). 16 B. Federal Law 17 Because Plaintiff is a prisoner challenging the conditions of his confinement, his claims 18 are subject to the Prison Litigation Reform Act (“PLRA”), as codified in 42 U.S.C. § 1997e. The 19 PLRA requires prisoners to exhaust available administrative remedies before bringing an action 20 challenging prison conditions under Section 1983. Jones, 549 U.S. at 211 (stating PLRA 21 exhaustion is mandatory). The statute states in relevant part: “No action shall be brought with 22 respect to prison conditions under section 1983 of this title, or any other Federal law, by a prison 23 confined in any jail, prison, or other correctional facility until such administrative remedies as are 24 available are exhausted.” 42 U.S.C. § 1997e(a). A matter has been “brought” within the meaning 25 of Section 1997e(a) when it has been submitted to the district clerk. Vaden v. Summerhill, 449 26 F.3d 1047, 1050 (9th Cir. 2006) (citation omitted); O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 27 2008) (citing Vaden). 28 //// 1 “Under § 1997e(a), the exhaustion requirement hinges on the ‘availab[ility]’ of 2 administrative remedies: An inmate ... must exhaust available remedies, but need not exhaust 3 unavailable ones.” Ross v. Blake, 578 U.S. 632, 642 (2016) (brackets in original). In discussing 4 availability in Ross, the Supreme Court identified three circumstances in which administrative 5 remedies were unavailable: (1) where an administrative remedy “operates as a simple dead end” 6 in which officers are “unable or consistently unwilling to provide any relief to aggrieved 7 inmates;” (2) where an administrative scheme is “incapable of use” because “no ordinary prisoner 8 can discern or navigate it;” and (3) where “prison administrators thwart inmates from taking 9 advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 10 578 U.S. at 643-44. “[A]side from [the unavailability] exception, the PLRA's text suggests no 11 limits on an inmate's obligation to exhaust – irrespective of any ‘special circumstances.’ ” Id. at 12 639. “[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, 13 foreclosing judicial discretion.” Id. at 639. 14 IV. DISCUSSION 15 There are three claims in raised in the Complaint. See ECF No. 1 at 3-5. With respect to 16 each one, when Plaintiff is asked if he has appealed it to the highest administrative level, 17 Plaintiff’s responses are either “No,” or he fails to respond to the question. See id. When then 18 asked with respect to each claim why he did not submit or appeal a request for administrative 19 relief at any level, Plaintiff ultimately writes that he “did not know what [to] do” and that he was 20 in extreme pain. See id. (brackets added). Not knowing what to do and being in extreme pain are 21 not answers that are sufficient to excuse the exhaustion requirement. See generally Ross, 578 22 U.S. at 643-44. 23 Section 1997e(a) forbids a prisoner litigant from bringing a matter to federal court before 24 he has first exhausted all administrative remedies that the prison provides. See 42 U.S.C. § 25 1997e(a). “An action is brought for purposes of exhaustion under Section 1997e(a) when the 26 complaint is tendered to the district clerk, and not when it is subsequently filed.” Akhtar v. Mesa, 27 698 F.3d 1202, 1210 (9th Cir. 2012) (brackets omitted) (internal quotation marks omitted) 28 (quoting Vaden, 449 F.3d at 1050 (quoting Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004)); 1 O’Neal, 531 F.3d at 1151 (stating screening statute 28 U.S.C. § 1915A does not recognize 2 independent process relating to in forma pauperis applications and that complaint is filed only 3 after court identifies cognizable claims). “[C]laims that are exhausted after the complaint has 4 been tendered to the district court, but before the district court grants . . . permission to proceed in 5 forma pauperis and files [the] complaint, must be dismissed pursuant to [Section] 1997e.” 6 Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (brackets added) (referencing Vaden, 7 440 F.3d at 1050-51). 8 In light of the above, the Complaint must be dismissed because it is clear on its face that 9 Plaintiff did not exhaust his administrative remedies at Corcoran prior to filing this case, and 10 Plaintiff provides no acceptable reason under the law to excuse his failure for not having done so. 11 See Wyatt v. Terhune, 315 F.3d 1108, 1120 (2003) (“A prisoner’s concession to nonexhaustion is 12 a valid ground for dismissal so long as no exception to exhaustion applies.”), overruled on other 13 grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014). However, prior to recommending that 14 this matter be dismissed, Plaintiff will first be ordered to show cause why it should not be. When 15 presenting his showing of cause, Plaintiff’s statement must provide clear and concise reasons why 16 he did not exhaust his administrative remedies before filing the instant case in this Court. In the 17 alternative, Plaintiff may provide evidence demonstrating that he exhausted his administrative 18 remedies prior to filing suit in this Court. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. Plaintiff shall SHOW CAUSE why this matter should not be summarily dismissed for 21 failure to exhaust administrative remedies as required by statute. See 42 U.S.C. § 1997e(a). 22 2. Plaintiff’s showing of cause shall be filed by December 4, 2023. In the alternative, a 23 showing of proof of exhaustion of administrative remedies shall discharge this order to show 24 cause. 25 26 27 28 1 Plaintiff is cautioned that failure to comply with this order within the period allotted 2 may result in a recommendation that this matter be dismissed. 3 4 IT IS SO ORDERED. 5 6 Dated: November 2, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28