Ransome v. Longero et al

Filing 13

ORDER to SHOW CAUSE Why This Action Should Not Be Dismissed, signed by Magistrate Judge Gary S. Austin on 11/15/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KIMIKO RANSOME,

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CASE NO. 1:10-cv-02317 GSA PC

Plaintiff,

ORDER TO SHOW CAUSE WHY THIS
ACTION SHOULD NOT BE DISMISSED

v.
RESPONSE DUE IN THIRTY DAYS

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C/O LONGERO, et al.,

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Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to

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28 U.S.C. § 636(c)(1).

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S.
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506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a).

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“Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the

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grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the liberal pleading

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standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330

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n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements

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of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257

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(9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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Plaintiff is an inmate in the custody of the California Department of Corrections and

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Rehabilitation (CDCR) at the Central California Women’s Facility in Chowchilla (CCWF). Plaintiff

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alleges that she is a wheelchair bound inmate. Plaintiff alleges that C/O Longero ordered her to get

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out of her wheelchair and walk through a metal detector. Plaintiff stood up, shifted her weight, and

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fell, injuring her left knee and elbow. Plaintiff further alleges that she was improperly classified as

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a Disability Placement Other (DPO), as opposed to a Disability Placement Wheelchair (DPW),

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which indicates the full time use of a wheelchair.

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Plaintiff initiated this action by the filing of a civil complaint on November 22, 2010. On

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November 8, 2011, Plaintiff filed a document styled as a notice of exhaustion of administrative

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remedies. In her submission, Plaintiff indicates that she has exhausted her remedies. Attached as

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an exhibit to her submission are copies of inmate grievance number CCWF-10-00533. In this

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grievance, Plaintiff indicates that, during a workchange on August 26, 2010, C/O Longero ordered

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Plaintiff to stand up and walk through a metal detector. Plaintiff attempted to stand up, and fell,

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injuring her knee and elbow. Plaintiff also attaches a copy of a Director’s Level Appeal Decision

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for inmate grievance number CCWF-10-00533. The Director’s Level Appeal decision was issued

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on September 15, 2011, fully exhausting Plaintiff’s administrative remedies. Cal. Code Regs. Tit.

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15, § 3084.5(e)(2).

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“The Prison Litigation Reform Act requires that a prisoner exhaust available administrative

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remedies before bringing a federal action concerning prison conditions.” Griffin v. Arpaio, 557 F.3d

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1117, 1119 (9th Cir. 2009)(citing 42 U.S.C.§ 1997e(a)). “[T]he PLRA exhaustion requirement
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requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). This means that a prisoner

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must “complete the administrative review process in accordance with the applicable procedural rules,

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including deadlines, as a precondition to bringing suit in federal court.” Marella v. Terhune, 568

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F.3d 1024, 1027 (9th Cir. 2009)(quoting Ngo, 548 U.S. at 88).

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Here, it appears that Plaintiff is conceding that she did not exhaust her available

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administrative remedies prior to filing suit. Although Plaintiff has provided documentation that she

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fully exhausted her administrative remedies, the Court is required under Prison Litigation Reform

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Act (PLRA) to dismiss actions without prejudice where prisoner failed to exhaust administrative

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remedies prior to filing suit but was in process of doing so when the case was filed. McKinney v.

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Carey, 311 F.3d 1198 (9th Cir. 2002).

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Accordingly, Plaintiff IS HEREBY ORDERED to show cause, within thirty days of the date

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of service of this order, why this action should not be dismissed without prejudice for failure to

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exhaust available administrative remedies prior to filing suit. Should Plaintiff fail to respond to this

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order to show cause, this action will be dismissed for failure to exhaust administrative remedies.

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IT IS SO ORDERED.
Dated:
6i0kij

November 15, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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