Durand v. Mr. Vinson ( 2021 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 ROBERTO DURAND, Case No. 3:21-cv-00492-MMD-CLB 5 Plaintiff, ORDER v. 6 MR. VINSON, 7 Defendant. 8 9 Plaintiff, who is incarcerated in the custody of the Nevada Department of 10 Corrections (“NDOC”), has submitted a civil rights complaint pursuant to 42 U.S.C. § 11 1983. (ECF Nos. 1-1).1 The Court notes a potential exhaustion issue. 12 Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with 13 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 14 prisoner confined in any jail, prison, or other correctional facility until such administrative 15 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion 16 requirement is mandatory and unexhausted claims cannot be brought in court. Booth v. 17 Churner, 532 U.S. 731, 741 (2001); Jones v. Bock, 549 U.S. 199, 211 (2007). 18 “In a few cases, a prisoner’s failure to exhaust may be clear from the face of the 19 complaint. However, such cases will be rare because a plaintiff is not required to say 20 anything about exhaustion in his complaint.” Albino v. Baca, 747 F.3d 1162, 1169 (9th 21 Cir. 2014). The “failure to exhaust is an affirmative defense under the PLRA” and 22 “inmates are not required to specially plead or demonstrate exhaustion in their 23 complaints.” Jones, 549 U.S. at 216. However, if it later comes to light that the plaintiff 24 failed to exhaust his administrative remedies on the claims raised in the complaint, the 25 district court will dismiss the unexhausted claims from the case. Id. at 219-21 (holding 26 1 Plaintiff has not filed an application to proceed in forma pauperis or paid the $402 27 filing fee. The Court previously issued an order requiring Plaintiff to file a complete application to proceed in forma pauperis or pay the full $402 filing fee by January 31, 1|| that the district court may dismiss the unexhausted claims from the complaint but may □□ proceed with the exhausted claims). The plaintiff must exhaust his or her claims before filing a lawsuit and cannot finish the exhaustion process during the case. See McKinney 4|| v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (holding that the “district court must 5|| dismiss an action involving prison conditions when the plaintiff did not exhaust his 6|| administrative remedies prior to filing suit but [was] in the process of doing so when a || motion to dismiss [was] filed”). 8 In the complaint, Plaintiff states that the alleged violations took place from November 1, 2021, through November 30, 2021. (ECF No. 1-1 at 1.) On November 29, 2021, Plaintiff initiated this action. (/d. at 9.) It seems unlikely that Plaintiff would have 11|| been able to fully exhaust his administrative remedies during that period. If Plaintiff needs 12|| to finish exhausting his administrative remedies, he may choose to file a notice of voluntary dismissal without prejudice? by January 31, 2022. The Court notes that if 14|| Plaintiff chooses to proceed with this case, he may be required to pay the full $402 filing fee, which includes the $350 filing fee and $52 administrative fee, even if the Court later 16|| dismisses this case. 17 It is therefore ordered that, if Plaintiff chooses to file a notice of voluntary dismissal without prejudice, he may do so by January 31, 2022. If Plaintiff chooses not to voluntarily 19|| dismiss this action by that date, and he files a complete application to proceed in forma 20|| pauperis or pays the full $402 filing fee by January 31, 2022, this case will proceed with the screening process. 22 23 DATED THIS 3rq_ day of December 2021. 24 . 25 UNITED STATES MAGISTRATE JUDGE 26 27 ? A dismissal without prejudice means that a plaintiff does not give up the right to 28 refile the case with the Court, under a new case number, when the plaintiff has exhausted his or her administrative remedies.