Kelly v. Wasco State Prison et al

Filing 11

ORDER to SHOW CAUSE why Action Should not be Dismissed for Failure to Exhaust Prior to Filing Suit, signed by Magistrate Judge Sheila K. Oberto on 3/27/13. 20-Day Deadline. (Verduzco, M)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
KEVIN KELLY,

CASE NO. 1:13-cv-00132-SKO PC

9
Plaintiff,

ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED FOR
FAILURE TO EXHAUST PRIOR TO FILING
SUIT

10
v.
11
WASCO STATE PRISON, et al.,
12

(Doc. 1)
Defendants.

13

TWENTY-DAY DEADLINE
/

14
15

Plaintiff Kevin Kelly, a state prisoner proceeding pro se and in forma pauperis, filed this civil

16

rights action pursuant to 42 U.S.C. § 1983 on December 21, 2012, in the Northern District of

17

California. The action was transferred to the Eastern District of California on January 25, 2013.

18

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

19

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

20

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

21

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

22

administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910 (2007);

23

McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless

24

of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v.

25

Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all

26

suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).

27

///

28

///
1

1

In his complaint, Plaintiff alleges that he filed an inmate appeal but the process has not been

2

completed. Thus, it appears that Plaintiff filed suit prematurely, without first exhausting his medical

3

care claims.

4

Accordingly, Plaintiff is HEREBY ORDERED to show cause within twenty (20) days from

5

the date of service of this order why this action should not be dismissed, without prejudice, for

6

failure to exhaust prior to filing suit. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A

7

prisoner’s concession to nonexhaustion is a valid grounds for dismissal. . . .”).

8
9
10
11

IT IS SO ORDERED.

12

Dated:
ie14hj

March 27, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2