(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 TO ASSIGN DISTRICT JUDGE v. 13 OFFICE OF THE CALIFORNIA AND 14 GOVERNOR, et al., 15 Defendants. FINDINGS AND RECOMMENDATIONS TO DISMISS THIS CASE FOR FAILURE 16 TO EXHAUST 17 18 OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS 19 20 Plaintiff Dimitri Z. Storm is a state prisoner proceeding pro se and in forma pauperis in 21 this civil rights action. Plaintiff generally claims that his phone calls and activities on his tablet 22 were interfered with and disrupted. For reasons stated below, the Court directs the Clerk of 23 Court to assign a district judge to this case and recommends that this case be dismissed for 24 failure to exhaust apparent from the face of the complaint. 25 I. BACKGROUND 26 Plaintiff filed the operative complaint on August 8, 2024. (ECF No. 1). He alleged that 27 his phone calls and activities on his tablet were interfered with and disrupted between July 20, 28 2024 and August 8, 2024. (Id. at 2). 1 Because Plaintiff’s complaint was both signed and filed on August 8, 2024, it appeared 2 from the face of the Complaint that Plaintiff did not exhaust his available administrative 3 remedies before filing this action. (Id. at 7; see also docket). Accordingly, on September 17, 4 2024, the Court issued an Order to Show Cause, ordering Plaintiff to file a response within 5 thirty days, explaining why this action should not be dismissed for failure to exhaust available 6 administrative remedies. (ECF No. 8). Plaintiff has not filed a response to the Court’s order and 7 the time do so has passed. 8 II. LEGAL STANDARDS 9 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 10 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 11 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 12 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 13 Prisoners are required to exhaust the available administrative remedies prior to filing 14 suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199–1201 15 (9th Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating to 16 prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of the 17 relief sought by the prisoner and regardless of the relief offered by the process, unless “the 18 relevant administrative procedure lacks authority to provide any relief or to take any action 19 whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); Ross 20 v. Blake, 578 U.S. 632, 643 (2016). 21 “Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong 22 for which redress is sought. The grievance need not include legal terminology or legal theories, 23 because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its 24 resolution, not to lay groundwork for litigation. The grievance process is only required to alert 25 prison officials to a problem, not to provide personal notice to a particular official that he may 26 be sued.” Reyes, 810 F.3d at 659 (alteration in original) (citations and internal quotation marks 27 omitted). 28 1 As discussed in Ross, 578 U.S. at 639, there are no “special circumstances” exceptions 2 to the exhaustion requirement. The one significant qualifier is that “the remedies must indeed 3 be ‘available’ to the prisoner.” Id. The Ross Court described this qualification as follows: 4 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple 5 dead end—with officers unable or consistently unwilling to provide 6 any relief to aggrieved inmates. See 532 U.S., at 736, 738, 121 S.Ct. 1819. . . . 7 Next, an administrative scheme might be so opaque that it becomes, 8 practically speaking, incapable of use. . . . 9 And finally, the same is true when prison administrators thwart 10 inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. . . . As all those courts 11 have recognized, such interference with an inmate’s pursuit of relief 12 renders the administrative process unavailable. And then, once again, 13 § 1997e(a) poses no bar. 14 Id. at 643–44. 15 When it is clear on the face of the complaint that a plaintiff failed to exhaust 16 administrative remedies, dismissal is proper. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 17 2014). 18 III. ANALYSIS 19 It is apparent from the face of the complaint that Plaintiff did not exhaust his available 20 administrative remedies before filing this action. Plaintiff complains of conduct that occurred 21 between July 20 and August 8, 2024. (ECF No. 1 at 2). Plaintiff’s complaint was signed and 22 filed on August 8, 2024. (Id. at 7). There simply was not enough time for Plaintiff to follow 23 prison’s grievance procedure and fully exhaust his claims before filing his suit. 24 Accordingly, this action should be dismissed for failure to exhaust available 25 administrative remedies. The Court notes that this dismissal is without prejudice. Therefore, if 26 Plaintiff exhausts his administrative remedies in the future, he could refile the complaint. 27 28 1 IV. CONCLUSION AND ORDER 2 It is apparent from the face of the complaint that Plaintiff failed to exhaust 3 || administrative remedies available to him prior to filing this action. 4 Accordingly, IT IS ORDERED that: 5 1. The Clerk of Court is directed to assign a district judge to this case. 6 In addition, IT IS RECOMMENDED that: 7 1. This action be dismissed without prejudice because it is clear from the face of 8 the complaint that Plaintiff failed to exhaust administrative remedies prior to 9 filing this suit; and 10 2. The Clerk of Court be directed to close this case. 11 These findings and recommendations will be submitted to the United States district 12 ||Jjudge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 13 || thirty days after being served with these findings and recommendations, Plaintiff may file 14 || written objections with the Court. The document should be captioned “Objections to Magistrate 15 || Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 16 || Within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 17 || 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1g || 1991)). Any objections shall be limited to no more than 15 pages including exhibits. 19 IT IS SO ORDERED. 20 21 || Dated: _ November 7, 2024 [Je ey — UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28