Opinion
1:21-cv-00932-GSA-PC
06-11-2022
MARCELLUS HENDERSON, Plaintiff, v. UNITED STATES, et al., Defendants.
ORDER DISCHARGING ORDER TO SHOW CAUSE ISSUED ON FEBRUARY 23, 2022
(ECF NO. 6.)
GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Marcellus Henderson (“Plaintiff”) is a federal prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). On June 14, 2021, Plaintiff filed the Complaint commencing this action. (ECF No. 1.)
On February 23, 2022, the court issued an order requiring Plaintiff to show cause, within thirty days, why this case should not be dismissed based on Plaintiff's failure to exhaust administrative remedies before filing this lawsuit in violation of 42 U.S.C. § 1997e(a). On March 9, 2022, Plaintiff filed a response to the court's order. (ECF No. 21.) Plaintiff alleges and has submitted evidence that he completed the administrative remedy process available at the prison.
While this order is not a finding that Plaintiff exhausted all of his available remedies for the claims in this case before filing suit, the court finds that Plaintiff's failure to exhaust remedies is no longer clear and therefore the court shall not resolve this issue at this stage of the proceedings. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (where failure to exhaust is clear from face of complaint, case is subject to dismissal for failure to state a claim under Rule 12(b)(6); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner's concession to nonexhaustion is a valid ground for dismissal....”) (overruled on other grounds by Albino, 747 F.3d at 1168-69). Accordingly, the court's order to show cause, issued on February 23, 2022, shall be discharged.
Based on the foregoing, IT IS HEREBY ORDERED that:
1. The court's order to show cause, issued February 23, 2022, is DISCHARGED;
and
2. The court shall screen Plaintiff's Complaint in due course.
IT IS SO ORDERED.