(PC) Barra v. Wilson ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY LAWRENCE BARRA, Case No. 1:24-cv-00069-HBK (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 14 DEPUTY WILSON, DEPUTY ZIEGLER, and SGT SCOTTI AND HIS SERT MARCH 15, 2024 DEADLINE 15 TEAM, 16 Defendants. 17 18 Anthony Lawrence Barra is a state prisoner proceeding pro se on his civil rights complaint 19 filed on January 16, 2024. (Doc. No. 1, “Complaint”). Plaintiff alleges Fourth and 20 Eighth/Fourteenth Amendment violations stemming from events that occurred on or about 21 January 11, 2024 at the Bob Wiley Detention Facility. (Id. at 3). Plaintiff acknowledges on the 22 face of his Complaint that he has not exhausted his administrative remedies. (Doc. No. 1 at 2). 23 Specifically, under the section of the form Complaint entitled “Exhaustion of Administrative 24 Remedies” Plaintiff checks the box marked “No” next to the question “Is the grievance process 25 completed?” (Id.). 26 Under the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 27 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 28 confined in any jail, prison, or other correctional facility until such administrative remedies as are 1 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is a condition precedent to filing a 2 civil rights claim. Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also McKinney v. Carey, 311 3 F.3d 1198, 1200 (9th Cir. 2002) (“Congress could have written a statute making exhaustion a 4 precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to 5 suit.” (citations omitted)). The exhaustion requirement “applies to all inmate suits about prison 6 life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the nature of the relief sought by the 7 prisoner or the relief offered by the prison’s administrative process is of no consequence. Booth 8 v. Churner, 532 U.S. 731, 741 (2001). And, because the PLRA’s text and intent requires 9 “proper” exhaustion, a prisoner does not satisfy the PLRA’s administrative grievance process if 10 he files an untimely or procedurally defective grievance or appeal. Woodford, 548 U.S. at 93. A 11 prisoner need not plead or prove exhaustion. Instead, it is an affirmative defense that must be 12 proved by defendant. Jones v. Bock, 549 U.S. 199, 211 (2007). A prison’s internal grievance 13 process, not the PLRA, determines whether the grievance satisfies the PLRA exhaustion 14 requirement. Id. at 218. However, courts may dismiss a claim if failure to exhaust is clear on the 15 face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 16 Based on the face of the Complaint, Plaintiff admits he has not yet exhausted his 17 administrative remedies as to his Fourth and Eighth/Fourteenth Amendment claims prior to filing 18 this case. Exhaustion is a pre-condition to initiating the action. In other words, before Plaintiff 19 may file a federal action on his claims he must first fully and properly exhaust all administrative 20 remedies for any claims that are available at the correctional institution where the events 21 occurred. Accordingly, Plaintiff shall show cause in writing why his Fourth and 22 Eighth/Fourteenth Amendment claims should not be dismissed for failure to exhaust his 23 administrative remedies. Plaintiff is warned that if he commenced this action before exhausting 24 his administrative remedies, a dismissal of his Complaint on this basis would count as a strike 25 under 1915(g). El-Shaddai v. Zamora, 833 F.3d 1036, 1043–44 (9th Cir. 2016).1 Alternatively, 26 1 Under § 1915(g), prisoners who have brought unsuccessful suits may be barred from bringing a civil 27 action and paying the fee on a payment plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, or for failure to state a claim. Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 28 1723 (2020); see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 2007). 1 | to avoid a strike, and because no defendant has yet been served, Plaintiff may elect to file a notice 2 | to voluntarily dismiss this claim without prejudice under Fed. R. Civ. P. 41. Plaintiff may then 3 | refile anew complaint in a new action after he fully exhausts his administrative remedies. Failure 4 | to respond to this Order will result in the recommendation that this action be dismissed for failure 5 | to exhaust and/or failure to comply with a court order. 6 Accordingly, it is ORDERED: 7 1. No later than March 15, 2024, Plaintiff shall deliver to correctional officials for 8 | mailing his response to the order and show cause why this action should not be dismissed for his 9 | failure to exhaust his administrative remedies before filing suit. Alternatively, by this same date, 10 | Plaintiff may deliver a “notice of voluntarily dismissal without prejudice under Fed. R. Civ. P. 11 | 41” to avoid a strike. 12 2. Plaintiffs failure to timely to respond to this order will result in the recommendation 13 | that this action be dismissed for Plaintiffs failure to exhaust his administrative remedies prior to 14 | initiating this action and/or failure to comply with a court order. 15 '© | Dated: _ February 8, 2024 Mile. Wh. foareh Zaskth 17 HELENA M. BARCH-KUCHTA ig UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28