Opinion
2:21-cv-1451 KJN P
09-24-2021
ALONZO RAYSHAWN PERKINS, Plaintiff, v. DANIEL E. CUEVA, Defendant.
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
By an order filed August 17, 2021, plaintiff was ordered to either pay the filing fee or file a completed in forma pauperis affidavit and a certified copy of his prison trust account statement, and was cautioned that failure to do so would result in a recommendation that this action be dismissed. (ECF No. 3.) The thirty day period has now expired, and plaintiff has not responded to the court's order and has not filed the required documents. Based on plaintiff's failure to comply with the August 17, 2021 order, the undersigned recommends that this action be dismissed.
Plaintiff opened this action by filing a motion for injunctive relief. (ECF No. 1.) Because plaintiff failed to pay the filing fee or file his in forma pauperis application, the undersigned does not address plaintiff's motion for injunctive relief. However, the undersigned makes the following observations regarding this motion.
In the motion for injunctive relief, plaintiff claims that his cell does not have a working electrical outlet. Plaintiff appears to request a court order directing prison officials to move him to a cell with a working electrical outlet. Plaintiff admits that he failed to exhaust administrative remedies regarding the issues raised in the motion for injunctive relief. Plaintiff alleges that it can take up to several months to exhaust administrative remedies. Plaintiff requests that he be excused from the administrative exhaustion requirement.
The Prison Litigation Reform Act (PLRA) of 1995 requires that prisoners exhaust “such administrative remedies as are available” before commencing a suit challenging prison conditions. 42 U.S.C. § 1997e(a). This statutory exhaustion requirement applies to all inmate suits about prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002).
In order to exhaust available administrative remedies, a prisoner must comply with the prison's procedural rules as a necessary precondition to bringing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules.”).
Because exhaustion is mandatory, unexhausted claims may not be brought to court. Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter, 534 U.S. at 524); see also Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (reaffirming that “special circumstances” do not excuse a failure to exhaust if remedies were available). If a prisoner has not exhausted available administrative remedies before filing his federal suit, the court must dismiss the action without prejudice. McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (per curiam).
Had plaintiff paid the filing fee or filed an in forma pauperis application, the undersigned would have recommended dismissal of this action based on plaintiff's failure to exhaust administrative remedies, which is clear from the face of plaintiff's motion for injunctive relief.
In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign a district judge to this case; and
IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: September 24, 2021