(PC) Wilhelm v. Aung ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 STEVE WILHELM, No. 2:22-cv-1026-EFB (PC) 11 Plaintiff, 12 v. ORDER 13 SANDAR AUNG, 14 Defendant. 15 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. He alleges that a physician at Mule Creek State Prison was deliberately 18 indifferent to his medical needs in violation of the Eighth Amendment. ECF No. 1. Plaintiff 19 concedes that he did not exhaust his administrative remedies. Id. at 3. Therefore, plaintiff will be 20 required to show cause why this case should not be dismissed, without prejudice, for failure to 21 exhaust administrative remedies prior to filing suit. See Wyatt v. Terhune, 315 F.3d 1108, 1120 22 (9th Cir. 2003) (prisoner’s concession to nonexhaustion is valid ground for dismissal of an action, 23 so long as no exception applies), overruled on other grounds by Albino v. Baca, 747 F.3d 1162 24 (9th Cir. 2014) (en banc). 25 Because plaintiff is a prisoner suing over the conditions of his confinement, his claims are 26 subject to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Under the PLRA, 27 “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or 28 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 1 || such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Porter v. 2 | Nussle, 534 U.S. 516, 520 (2002) (“§ 1997e(a)’s exhaustion requirement applies to all prisoners 3 || seeking redress for prison circumstances or occurrences”). “[T]hat language is ‘mandatory’: An 4 || inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent 5 | exhaustion of available administrative remedies.” Ross v. Blake, 578 U.S. 632, 638 (2016) 6 | (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). 7 California inmates initiate the exhaustion process by submitting a written grievance that 8 | disputes a policy, decision, action, condition, or omission by CDCR or CDCR staff. Cal. Code 9 || Regs. tit. 15, § 3481(a). The grievance process, as defined by California regulations, has two 10 || levels of review. /d. If the written grievance is denied, the inmate must submit a written appeal 11 || to the Office of Appeals. /d. §§ 3481(a), 3484(a). Administrative remedies generally are 12 || exhausted upon completion of the review process by the Office of Appeals. See id. §§ 3481(a), 13 | 3483(D, 3485(). 14 It is clear on the face of his complaint that plaintiff failed to exhaust administrative 15 || remedies prior to filing suit. See ECF No. 1 at 3 (explaining that he did not submit a written 16 || grievance because “it would have been futile because the harm had already been done”). 17 || Although the complaint asserts in a conclusory fashion that exhaustion would be futile, it does not 18 || contain factual allegations to support that conclusion. Accordingly, the Court ORDERS plaintiff, 19 || within 21 days of the date of service of this order, to show cause in writing why this action should 20 || not be dismissed for his failure to exhaust. Alternatively, plaintiff may file a notice of voluntary 21 | dismissal. 22 So ordered. 23 || Dated: August 5, 2022. Yo, ( LZ EDMUND F. 25 UNITED STATES MAGISTRATE JUDGE 26 27 28