Fraher v. Mitchell et al

Filing 5

ORDER Requiring Plaintiff to SHOW CAUSE Why Action Should Not Be Dismissed, Without Prejudice, for Failure to Exhaust Prior to Filing Suit, signed by Magistrate Judge Sheila K. Oberto on 11/15/13. Twenty-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CECILIA FRAHER,
Plaintiff,

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v.

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DR. ROBERT MITCHELL, et al.,
Defendants.

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Case No. 1:13-cv-01849-SKO PC
ORDER REQUIRING PLAINTIFF TO
SHOW CAUSE WHY ACTION SHOULD
NOT BE DISMISSED, WITHOUT
PREJUDICE, FOR FAILUE TO EXHAUST
PRIOR TO FILING SUIT
(Doc. 1)
TWENTY-DAY DEADLINE

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_____________________________________/
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Plaintiff Cecilia Fraher, a state prisoner proceeding pro se and in forma pauperis, filed this

18 civil rights action pursuant to 42 U.S.C. § 1983 on November 14, 2013.
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Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with

20 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
21 confined in any jail, prison, or other correctional facility until such administrative remedies as are
22 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available
23 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910
24 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required
25 regardless of the relief sought by the prisoner and regardless of the relief offered by the process,
26 Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement
27 applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983
28 (2002).

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In her complaint, Plaintiff concedes that while she filed an appeal, the process has not yet

2 been completed, and Plaintiff’s exhibit show that she submitted her appeal to the final level of
3 review on November 6, 2013. (Doc. 1, Comp., pp. 2, 12.) Thus, it appears Plaintiff filed suit
4 prematurely without first exhausting in compliance with section 1997e(a).
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Accordingly, Plaintiff is HEREBY ORDERED to show cause within twenty (20) days

6 from the date of service of this order why this action should not be dismissed, without prejudice,
7 for failure to exhaust prior to filing suit. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003)
8 (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal. . . .”).
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IT IS SO ORDERED.
Dated:

November 15, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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