Opinion
1:21-cv-01109-DAD-JLT (PC)
12-04-2021
JOE ALFRED TAYLOR, Plaintiff, v. AYUB HAROUN, et al., Defendants.
ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
JENNIFER L. THURSTON, CHIEF UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a state prisoner, alleges the defendants unlawfully terminated his participation in a prison religious diet program. (Doc. 1.) Plaintiff attaches the administrative grievance he filed and the responses thereto to his complaint. (Id. at 10-19.) According to these documents, prison officials disapproved of Plaintiff's grievance at the first level of review on September 30, 2020. (Id. at 17.) Plaintiff appealed the decision on November 6, 2020, which the California Department of Corrections and Rehabilitation (CDCR) Office of Appeals rejected as untimely. (Id. at 15-19.)
According to his proof of service, Plaintiff provided the appeal to prison officials for mailing on November 1, 2020. (Doc. 1 at 18.)
The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with respect to prison conditions under . . . 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). Exhaustion of administrative remedies is mandatory and “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation omitted). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001).
Inmates are required to “complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). In California, state-inmate grievances are subject to two levels of review. See Cal. Code Regs. tit. 15, § 3481(a). In general, prisoners must receive a disposition from the CDCR Office of Appeals at the second level of review before administrative remedies are deemed exhausted. See Id. §§ 3483(m)(1), 3486(m); but see Id. § 3483(m)(2). The Office of Appeals may reject an appeal if the prisoner did not submit it within 30 days of the decision at the first level of review. See Id. §§ 3485(b), 3486(e), 3487(a)(1). A rejection does not exhaust administrative remedies. Id. § 3486(m).
Failure to exhaust is generally an affirmative defense that the defendant must plead and prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014).
It is clear on the face of his complaint that Plaintiff failed to exhaust administrative remedies. Accordingly, the Court ORDERS Plaintiff, within 21 days of the date of service of this order, to show cause in writing why this action should not be dismissed for his failure to exhaust. Alternatively, Plaintiff may file a notice of voluntary dismissal. Failure to comply with this order will result in a recommendation that this action be dismissed.
IT IS SO ORDERED.