Diaz v. Vasquez, et al.

Filing 13

ORDER to SHOW CAUSE Regarding Exhaustion signed by Magistrate Judge Gerald B. Cohn on 7/12/2012. Show Cause Response due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MIGUEL ENRIQUE DIAZ,

1:12-cv-00732-GBC (PC)

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ORDER TO SHOW CAUSE REGARDING
EXHAUSTION

Plaintiff,
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v.

(Doc. 1)

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CAPT. VASQUEZ, et al.,
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Defendants.
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I.

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Miguel Enrique Diaz (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action filed pursuant to 42 U.S.C. § 1983. On May 4, 2012, Plaintiff filed his

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original complaint. Doc. 1. On page two of the form complaint, Plaintiff states that he has not

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completed exhaustion of administrative remedies due to the fact that he wishes to seek an emergency

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injunction before the Court. Doc. 1 at 2.

Factual and Procedural Background

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II.

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Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with

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respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner

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confined in any jail, prison, or other correctional facility until such administrative remedies as are

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available are exhausted." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available

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administrative remedies prior to filing suit. Jones v. Bock, 127 S.Ct. 910, 918-19 (2007); McKinney

Exhaustion Requirement

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v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). The Court must dismiss a case without

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prejudice even when there is exhaustion while the suit is pending. Lira v. Herrera, 427 F.3d 1164,

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1170 (9th Cir. 2005).

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Exhaustion is required regardless of the relief sought by the prisoner. Booth v. Churner, 532

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U.S. 731, 741, 121 S.Ct. 1819 (2001). A prisoner must “must use all steps the prison holds out,

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enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir.

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2009); see also Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). A prisoner’s concession to

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non-exhaustion is valid grounds for dismissal so long as no exception to exhaustion applies. 42

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U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).

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The Court takes judicial notice of the fact that the California Department of Corrections and

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Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit.

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15 § 3084.1 (2011). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2. Three

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levels of appeal are involved, including the first formal level, second formal level, and third formal

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level, also known as the "Director's Level." Id. at § 3084.7. Appeals must be submitted within thirty

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calendar days of the event being appealed, and the process is initiated by submission of the appeal

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to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.8.

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In order to satisfy section 1997e(a), California state prisoners are required to use the available

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process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378,

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2383 (2006); McKinney, 311 F.3d at 1199-1201. “[E]xhaustion is mandatory under the PLRA and

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. . . unexhausted claims cannot be brought in court.” Jones, 127 S.Ct. at 918-19 (citing Porter, 435

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U.S. at 524). “All ‘available’ remedies must now be exhausted; those remedies need not meet

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federal standards, nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524 (quoting

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Booth, 532 U.S. at 739 n.5).

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There is no exception to the exhaustion requirement for imminent harm. Jones v. Sandy,

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2006 WL 355136 at *11 (E.D. Cal. Feb. 14, 2006). Because it is clear from the face of Plaintiff’s

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complaint that he has not yet exhausted, this action should be dismissed. 42 U.S.C. § 1997e(a); Wyatt

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v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a

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valid grounds for dismissal . . . .”).
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III.

Conclusion and Order

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Because it appears that Plaintiff has not completed the grievance process, the Court

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HEREBY ORDERS: Within thirty (30) days of the date of service of this order, Plaintiff SHALL

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SHOW CAUSE why the action should not be dismissed for failure to exhaust administrative

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remedies.

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IT IS SO ORDERED.

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Dated:
0jh02o

July 12, 2012
UNITED STATES MAGISTRATE JUDGE

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