Kelly v. Wasco State Prison et al
Filing
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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)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KEVIN KELLY,
CASE NO. 1:13-cv-00132-SKO PC
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Plaintiff,
ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED FOR
FAILURE TO EXHAUST PRIOR TO FILING
SUIT
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v.
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WASCO STATE PRISON, et al.,
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(Doc. 1)
Defendants.
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TWENTY-DAY DEADLINE
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Plaintiff Kevin Kelly, a state prisoner proceeding pro se and in forma pauperis, filed this civil
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rights action pursuant to 42 U.S.C. § 1983 on December 21, 2012, in the Northern District of
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California. The action was transferred to the Eastern District of California on January 25, 2013.
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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, 549 U.S. 199, 211, 127 S.Ct. 910 (2007);
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McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless
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of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v.
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Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all
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suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).
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In his complaint, Plaintiff alleges that he filed an inmate appeal but the process has not been
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completed. Thus, it appears that Plaintiff filed suit prematurely, without first exhausting his medical
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care claims.
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Accordingly, Plaintiff is HEREBY ORDERED to show cause within twenty (20) days from
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the date of service of this order why this action should not be dismissed, without prejudice, for
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failure to exhaust prior to filing suit. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A
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prisoner’s concession to nonexhaustion is a valid grounds for dismissal. . . .”).
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IT IS SO ORDERED.
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Dated:
ie14hj
March 27, 2013
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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