(PC) Barra v. Tulare County Sheriff's Office Department ( 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. 1:23-cv-01756-HBK (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 14 TULARE COUNTY SHERIFF’S OFFICE DEPARTMENT, MARCH 20, 2024 DEADLINE 15 Defendant.1 16 17 Pending before the Court for screening under 28 U.S.C. § 1915A is the pro se civil rights 18 complaint filed under 42 U.S.C. § 1983 by Anthony Lawrence Barra—a state prisoner/pretrial 19 detainee. (Doc. No. 1, Complaint). Upon review, the Court finds the Complaint is subject to 20 dismissal. Notably, Plaintiff admits on the face of the Complaint he did not fully exhaust his 21 administrative remedies before he initiated this action. 22 The Complaint concerns events stemming from Plaintiff’s confinement at the Bob Wiley 23 Detention Facility. (Id. at 3). Plaintiff complains that: 24 Sheriffs are not giving my 10 hours a week. Mrs. Murphy said on Wednesday I used my time. This took place at Bob Wiley’s 25 Detention Facility. We by law are entitled to 2 hours each day. 26 (Id. at 3). As relief, Plaintiff seeks “monetary damages” in the amount of $5,000. (Id.). 27 1 The Complaint identifies The Tulare County Sheriff’s Department in the caption but names “Murphy” 28 the “pro-per lia[i]son” under the list of Defendants in Section III of the complaint form. (Doc. No. 1 at 2). 1 At the outset, the Complaint fails to state a claim. Fed. R. Civ. P. 8(a)(2). For a claim to 2 be facially plausible to survive screening, the plaintiff must provide sufficient factual detail to 3 allow the court to reasonably infer that each named defendant is liable for the misconduct alleged. 4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th 5 Cir. 2009). Although detailed factual allegations are not required, “[t]hreadbare recitals of the 6 elements of a cause of action, supported by mere conclusory statements, do not suffice,” Iqbal, 7 556 U.S. at 678 (citations omitted), and courts “are not required to indulge unwarranted 8 inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 9 marks and citation omitted). Given the brevity of the Complaint, the Court cannot discern which, 10 if any, of Plaintiff’s constitutional rights were impeded, and by whom. 11 While the Court would normally afford a pro se litigant an opportunity to file an amended 12 complaint to cure an otherwise deficient pleading, here Plaintiff acknowledges on the face of his 13 Complaint that he has not exhausted his administrative remedies. (Doc. No. 1 at 2). Specifically, 14 under the section of the form Complaint entitled “Exhaustion of Administrative Remedies” 15 Plaintiff checks the box marked “No” next to the question “Is the grievance process completed?” 16 (Id.). 17 Under the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 18 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 19 confined in any jail, prison, or other correctional facility until such administrative remedies as are 20 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is a condition precedent to filing a 21 civil rights claim. Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also McKinney v. Carey, 311 22 F.3d 1198, 1200 (9th Cir. 2002) (“Congress could have written a statute making exhaustion a 23 precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to 24 suit.” (citations omitted)). The exhaustion requirement “applies to all inmate suits about prison 25 life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the nature of the relief sought by the 26 prisoner or the relief offered by the prison’s administrative process is of no consequence. Booth 27 v. Churner, 532 U.S. 731, 741 (2001). And, because the PLRA’s text and intent requires 28 “proper” exhaustion, a prisoner does not satisfy the PLRA’s administrative grievance process if 1 he files an untimely or procedurally defective grievance or appeal. Woodford, 548 U.S. at 93. A 2 prisoner need not plead or prove exhaustion. Instead, it is an affirmative defense that must be 3 proved by defendant. Jones v. Bock, 549 U.S. 199, 211 (2007). A prison’s internal grievance 4 process, not the PLRA, determines whether the grievance satisfies the PLRA exhaustion 5 requirement. Id. at 218. However, courts may dismiss a claim if failure to exhaust is clear on the 6 face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 7 Based on the face of the Complaint, Plaintiff admits he did not exhaust his administrative 8 remedies regarding the claim raised in his Complaint prior to filing this case. Exhaustion is a pre- 9 condition to initiating the action. In other words, before Plaintiff may file a federal action on his 10 claims he must first fully and properly exhaust all administrative remedies for any claims that are 11 available at the correctional institution where the events occurred. Only after the administrative 12 remedies are fully and properly exhausted may a prisoner litigant then commence an action. 13 Accordingly, Plaintiff shall show cause in writing why his Complaint should not be dismissed for 14 failure to exhaust his administrative remedies. Plaintiff is warned that if he commenced this 15 action before exhausting his administrative remedies, a dismissal of his Complaint on this basis 16 would count as a strike under 1915(g). El-Shaddai v. Zamora, 833 F.3d 1036, 1043–44 (9th Cir. 17 2016).2 Alternatively, to avoid a strike, and because no defendant has yet been served, Plaintiff 18 may elect to file a notice to voluntarily dismiss this claim without prejudice under Fed. R. Civ. P. 19 41. Plaintiff may then refile a new complaint in a new action after he fully exhausts his 20 administrative remedies. Failure to respond to this Order will result in the recommendation that 21 this action be dismissed for failure to exhaust and/or failure to comply with a court order. 22 Accordingly, it is ORDERED: 23 1. No later than March 20, 2024, Plaintiff shall deliver to correctional officials for 24 mailing his response to the order and show cause why this action should not be dismissed for his 25 26 2 Under § 1915(g), prisoners who have brought unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment plan once they have had on prior occasions three or more cases 27 dismissed as frivolous, malicious, or for failure to state a claim. Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020); see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 2007). 28 1 | failure to exhaust his administrative remedies before filing suit. Alternatively, by this same date, 2 | Plaintiff may deliver a “notice of voluntarily dismissal without prejudice under Fed. R. Civ. P. 3 | 41” to avoid a strike. 4 2. Plaintiffs failure to timely to respond to this order will result in the recommendation 5 | that this action be dismissed for Plaintiffs failure to exhaust his administrative remedies prior to 6 | initiating this action and/or failure to comply with a court order. 7 Dated: _ February 20, 2024 Mihaw. Th fareh Hack 9 HELENA M. BARCH-KUCHTA 0 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28