Hann v. Harmon

Filing 9

ORDER REQUIRING Plaintiff to SHOW CAUSE Why Action should not be Dismissed, without Prejudice, for Failure to Exhaust Prior to Filing Suit; Twenty-One Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 5/4/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EVAN E. HANN,

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Plaintiff,

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v.

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HARMON, et al.,

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Defendants.

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Case No.: 1:15-cv-00396-BAM (PC)
ORDER REQUIRING PLAINTIFF TO SHOW
CAUSE WHY ACTION SHOULD NOT BE
DISMISSED, WITHOUT PREJUDICE, FOR
FAILUE TO EXHAUST PRIOR TO FILING SUIT
(ECF No. 1)
TWENTY-ONE DAY DEADLINE

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Plaintiff Evan E. Hann, a state prisoner proceeding pro se and in forma pauperis, filed this civil
rights action pursuant to 42 U.S.C. § 1983 on March 12, 2015.

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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 confined

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

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

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

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

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sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S.

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731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all suits relating to prison

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life, Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983 (2002).

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In his complaint, Plaintiff concedes that while he filed a grievance, the process has not yet been

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completed. (ECF No. 1, Comp., p. 2.) Thus, it appears Plaintiff filed suit prematurely without first

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exhausting in compliance with section 1997e(a).

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Accordingly, Plaintiff is HEREBY ORDERED to show cause within twenty-one (21) days

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from 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. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014)

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(in rare cases where a failure to exhaust is clear from the face of the complaint it may be dismissed for

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failure to state a claim); Lucas v. Director of Dept. of Corrections, 2015 WL 1014037, *4 (E.D. Cal.

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Mar. 6, 2015) (relying on Albino and dismissing complaint without prejudice on screening due to

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plaintiff’s failure to exhaust administrative remedies prior to filing suit).

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

May 4, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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