(PC) Watson v. Diaz ( 2024 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 WILLIAM XAVIER WATSON, JR., Case No. 1:23-cv-01750-EPG 10 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS THE CASE WITHOUT 11 v. PREJUDICE FOR FAILURE TO EXHAUST 12 DIAZ, ET AL., (ECF No. 1) 13 Defendants. OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 14 AND 15 ODER TO ASSIGN A DISTRICT JUDGE 16 17 William Watson, Jr. is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this 19 action on December 21, 2023. (ECF No. 1.) Plaintiff alleges a claim of excessive force because 20 an officer claims that he was resisting when he was not, and a claim of retaliation, because he 21 received a “write-up” after filing a grievance. (Id. at 3, 4). 22 The Court previously reviewed the complaint, and it appeared that Plaintiff failed to 23 exhaust his available administrative remedies before filing suit. Plaintiff appears to admit that 24 the grievance process was available to him, but that he did not complete the process for either 25 of his two claims. (ECF No. 1 at 3, 4.) Therefore, on January 8, 2024, the Court issued an Order 26 to Show Cause, ordering Plaintiff to file a response within thirty days and to explain why this 27 action should not be dismissed for failure to exhaust available administrative remedies. (ECF 28 No. 8). The deadline for filing a response has passed, and Plaintiff has not filed a response. 1 42 U.S.C. § 1997e(a) states that “[n]o action shall be brought with respect to prison 2 conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in 3 any jail, prison, or other correctional facility until such administrative remedies as are available 4 are exhausted.” Exhaustion is required regardless of the relief sought by the prisoner and 5 regardless of the relief offered by the administrative process, unless “the relevant 6 administrative procedure lacks authority to provide any relief or to take any action whatsoever 7 in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); Ross v. Blake, 8 578 U.S. 632, 639, 642 (2016). Exhaustion of administrative remedies must occur before the 9 filing of the complaint. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The Court 10 notes that a dismissal for failure to exhaust is without prejudice. Id. While there are no “special 11 circumstances” exceptions to the exhaustion requirement, Ross, 578 at 638, “the 12 [administrative] remedies must indeed be ‘available’ to the prisoner.” Id. at 639. 13 Plaintiff’s complaint asserts that there were administrative remedies available to 14 Plaintiff, and that while he had filed grievances on the incident before filing the complaint, he 15 had not finished exhausting the available remedies before he filed this case. (ECF No. 1 at 3, 16 4). On the form Plaintiff used to draft his Complaint, in response to the question “Are there any 17 administrative remedies (grievance procedures or administrative appeals) available at your 18 institution?,” Plaintiff checked the box that states “Yes.” (Id. at 3). In response to the next 19 question on the form, “Did you submit a request for administrative relief on Claim I?,” Plaintiff 20 checked the box that states “Yes.” (Id.) However, Plaintiff responded “No” to the question, 21 “Did you appeal your request for relief on Claim I to the highest level?” and stated, “The 22 process hasn’t been reviewed yet.” (Id.) Likewise, for Claim 2, Plaintiff acknowledged that the 23 remedies are available and that he filed a request for administrative relief for Claim 2, but did 24 not appeal it, because the request has “not yet [been] reviewed.” (Id. at 4). 25 Moreover, Plaintiff failed to respond to the order directing him to show cause why this 26 case should not be dismissed, without prejudice, for failure to exhaust available administrative 27 remedies. (ECF No. 8.) 28 1 Therefore, the Court will recommend dismissing this case for failure to exhaust 2 || administrative remedies. 3 Accordingly, it is ORDERED: 4 The Clerk of Court is directed to assign a district judge to this case. 5 It is further RECOMMENDED: 6 1. Plaintiff's complaint (ECF No. 1) be dismissed, without prejudice, because 7 Plaintiff failed to exhaust available administrative remedies prior to filing this 8 case! 9 2. The Clerk of Court be directed to close this case. 10 These findings and recommendations will be submitted to the United States district 11 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within 12 || thirty days after being served with these findings and recommendations, Plaintiff may file 13 || written objections with the Court. The document should be captioned “Objections to Magistrate 14 || Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 15 || within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 16 || 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 17 |] 1991)). 18 19 IT IS SO ORDERED. 20 Dated: _ February 21, 2024 [sf ey 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 ' Plaintiff may re-file this action once he has exhausted his available administrative remedies.