Opinion
1:23-cv-01094-ADA-BAM (PC)
08-29-2023
NICHOLAS RICE, Plaintiff, v. GONZALES, et al., Defendants.
ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST PRIOR TO FILING SUIT (ECF NO. 12) TWENTY-ONE (21) DAY DEADLINE
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.
Plaintiff Nicholas Rice (“Plaintiff') is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002).
In the first amended complaint, Plaintiff states that there is an inmate appeal or administrative grievance process available at his institution, that he filed an appeal or grievance concerning all of the facts in his first amended complaint, but that the process is not completed. (ECF No. 12, p. 2.) Plaintiff states “two steps completed no available response on the second one” and “I submitted a grievance and asked to put in a excessive use of force.” (Id.) In addition, while the exhibits attached to the first amended complaint support that Plaintiff received a response to his first level grievance and then Plaintiff filed an appeal at the second level, there is no indication that Plaintiff received a response from the second level. (Id. at 6-8.)
Based on the information provided, it appears Plaintiff filed suit prematurely without first exhausting his administrative remedies in compliance with the PLRA, section 1997e(a).
Accordingly, Plaintiff is HEREBY ORDERED to show cause within twenty-one (21) days from the date of service of this order why this action should not be dismissed, without prejudice, for failure to exhaust prior to filing suit. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (in rare cases where a failure to exhaust is clear from the face of the complaint, it may be dismissed for failure to state a claim); Medina v. Sacramento Cty. Sheriff's Dep't, No. 2:16-cv-0765 AC P, 2016 WL 6038181, at *3 (E.D. Cal. Oct. 14, 2016) (“When it is clear from the face of the complaint and any attached exhibits that a plaintiff did not exhaust his available administrative remedies before commencing an action, the action may be dismissed on screening for failure to state a claim.”); Lucas v. Dir. of Dep't. of Corrs., 2015 WL 1014037, at *4 (E.D. Cal. Mar. 6, 2015) (relying on Albino and dismissing complaint without prejudice on screening due to plaintiff's failure to exhaust administrative remedies prior to filing suit).
IT IS SO ORDERED.