(PC) Storm v. Office of the California Governor ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DIMITRI Z. STORM, Case No. 1:24-cv-00917-EPG (PC) 11 Plaintiff, 12 ORDER FOR PLAINTIFF TO SHOW CAUSE v. 13 WHY THIS ACTION SHOULD NOT BE OFFICE OF THE CALIFORNIA DISMISSED WITHOUT PREJUDICE FOR 14 GOVERNOR, et al., FAILURE TO EXHAUST 15 Defendants. RESPONSE DUE IN THIRTY DAYS 16 17 Plaintiff Dimitri Z. Storm is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action. Plaintiff filed the operative complaint on August 8, 2024. (ECF No. 1). 19 Plaintiff generally claims that his phone calls and activities on his tablet were interfered with 20 and disrupted between July 20, 2024 and August 8, 2024. (Id. at 2). 21 Because Plaintiff’s complaint was both signed and filed on August 8, 2024, it appears 22 from the face of the Complaint that Plaintiff did not exhaust his available administrative 23 remedies before filing this action. (Id. at 7; see also docket). 24 Accordingly, the Court will order Plaintiff to file a response within thirty days, 25 explaining why this action should not be dismissed for failure to exhaust available 26 administrative remedies. Such a dismissal would be without prejudice, so that Plaintiff may 27 refile the action after exhausting administrative remedies, to the extent those remedies are still 28 available to him. I. LEGAL STANDARDS 1 2 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 3 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 4 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 5 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 6 Prisoners are required to exhaust the available administrative remedies prior to filing 7 suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199–1201 8 (9th Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating to 9 prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of the 10 relief sought by the prisoner and regardless of the relief offered by the process, unless “the 11 relevant administrative procedure lacks authority to provide any relief or to take any action 12 whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); Ross 13 v. Blake, 578 U.S. 632, 643 (2016). 14 “Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong 15 for which redress is sought. The grievance need not include legal terminology or legal theories, 16 because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its 17 resolution, not to lay groundwork for litigation. The grievance process is only required to alert 18 prison officials to a problem, not to provide personal notice to a particular official that he may 19 be sued.” Reyes, 810 F.3d at 659 (alteration in original) (citations and internal quotation marks 20 omitted). 21 As discussed in Ross, 578 U.S. at 639, there are no “special circumstances” exceptions 22 to the exhaustion requirement. The one significant qualifier is that “the remedies must indeed 23 be ‘available’ to the prisoner.” Id. The Ross Court described this qualification as follows: 24 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple 25 dead end—with officers unable or consistently unwilling to provide 26 any relief to aggrieved inmates. See 532 U.S., at 736, 738, 121 S.Ct. 1819. . . . 27 Next, an administrative scheme might be so opaque that it becomes, 28 practically speaking, incapable of use. . . . And finally, the same is true when prison administrators thwart 1 inmates from taking advantage of a grievance process through 2 machination, misrepresentation, or intimidation. . . . As all those courts 3 have recognized, such interference with an inmate’s pursuit of relief renders the administrative process unavailable. And then, once again, 4 § 1997e(a) poses no bar. 5 Id. at 643–44. 6 If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal 7 without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S. 8 at 223–24; Lira v. Herrera, 427 F.3d 1164, 1175–76 (9th Cir. 2005). 9 When it is clear on the face of the complaint that a plaintiff failed to exhaust 10 administrative remedies, dismissal is proper. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 11 2014). 12 II. ANALYSIS 13 It appears from the face of the complaint that Plaintiff did not exhaust his available 14 administrative remedies before filing this action. Plaintiff complains of conduct that occurred 15 between July 20 and August 8, 2024. (ECF No. 1 at 2). Plaintiff’s complaint was both signed 16 and filed on August 8, 2024. (Id. at 7). There simply was not enough time for Plaintiff to follow 17 prison’s grievance procedure and fully exhaust his claims before filing his suit. 18 Accordingly, the Court will order Plaintiff to show cause why this action should not be 19 dismissed for failure to exhaust available administrative remedies. The Court notes that this 20 dismissal would be without prejudice. Therefore, if Plaintiff exhausts his administrative 21 remedies in the future, he could refile the complaint. 22 23 In response to this order, the Court also welcomes Plaintiff to file any documents he 24 believes demonstrates that he has exhausted all available administrative remedies. 25 III. CONCLUSION AND ORDER TO SHOW CAUSE 26 Accordingly, IT IS ORDERED that, within thirty (30) days from the date of service 27 of this order, Plaintiff shall show cause why this action should not be dismissed, without 28 prejudice, for failure to exhaust available administrative remedies. Plaintiff’s response may also 1 || contain any documents Plaintiff believes are responsive to the exhaustion issue. If Plaintiff fails 2 || to file a response the Court may recommend to a district judge that Plaintiff's complaint be 3 || dismissed without prejudice for failure to exhaust administrative remedies. Again, if Plaintiffs 4 || case is dismissed for failure to exhaust administrative remedies, Plaintiff may refile the 5 complaint after he has exhausted administrative remedies to the extent those remedies are still 6 available to him. 7 8 || IT IS SO ORDERED. Dated: _ September 17, 2024 [Je hey UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28