(PC) Creamer v. California State Prison Delano ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRUCE CREAMER, Case No. 1:23-cv-00139-CDB (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION 13 v. SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE 14 CALIFORNIA STATE PRISON REMEDIES DELANO, 15 21-DAY DEADLINE Defendant. 16 17 Plaintiff Bruce Creamer is a state prisoner proceeding pro se in this civil rights action. 18 INTRODUCTION 19 Plaintiff filed his complaint with this Court on January 30, 2023. (Doc. 1.) A brief review 20 of the complaint reveals the incident giving rise to Plaintiff’s claims occurred on January 20, 21 2023. (Id. at 2-4.) 22 DISCUSSION AND ORDER 23 In his complaint, Plaintiff indicates that “has exhausted his administrative remedies with 24 respect to all claims and all defendants.” (See Doc. 1 at 4.) Nevertheless, given the date of the 25 subject incident, the Court is skeptical of Plaintiff’s assertion. It is unlikely, if not impossible, that 26 Plaintiff exhausted his administrative remedies between January 20, 2023—the date of the 27 incident—and January 22, 2023, the date he signed his complaint. 28 // 1 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 2 respect to prison conditions under . . . any other Federal law . . . by a prisoner confined in any jail, 3 prison, or other correctional facility until such administrative remedies as are available are 4 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 5 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 6 omitted). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 7 Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 8 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 9 Inmates are required to “complete the administrative review process in accordance with 10 the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 11 court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). In California, state-inmate grievances are 12 subject to two levels of review. See Cal. Code Regs. tit. 15, §§ 3481(a), 3999.226(a)(1). Prisoners 13 must generally receive a disposition from the second level of review before administrative 14 remedies are deemed exhausted. See id. §§ 3483(m)(1), 3486(m), 3999.226(h); but see id. § 15 3483(m)(2). 16 In general, failure to exhaust is an affirmative defense that the defendant must plead and 17 prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is 18 clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 19 20 21 22 Remainder of This Page Intentionally Left Blank 23 24 25 26 27 28 1 Here, it appears clear on the face of his complaint that Plaintiff has failed to exhaust 2 | administrative remedies prior to filing suit, despite his assertion otherwise. Accordingly, the 3 | Court ORDERS Plaintiff, within 21 days of the date of service of this order, to show cause in 4 | writing why this action should not be dismissed for his failure to exhaust. Alternatively, Plaintiff 5 | may file a notice of voluntary dismissal. 6 Failure to comply with this order will result in a recommendation that this action be 7 | dismissed. 8 | IT IS SO ORDERED. Dated: _ February 1, 2023 | Ww Vv R~ 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28