Thomas v. Parks et al

Filing 12

ORDER to SHOW CAUSE, signed by Magistrate Judge Sheila K. Oberto on 12/2/2016. Show Cause Response due (30-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD THOMAS,
Plaintiff,

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ORDER REQUIRING PLAINTIFF TO
SHOW CAUSE WHY ACTION SHOULD
NOT BE DISMISSED, WITHOUT
PREJUDICE, FOR FAILURE TO EXHAUST
PRIOR TO FILING SUIT

Defendants.

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Case No. 1:16-cv-01393-LJO-SKO (PC)

(Doc. 1)

v.
PARKS, et al.,

THIRTY (30) DAY DEADLINE
_____________________________________/

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Plaintiff, Edward Thomas, a state prisoner proceeding pro se and in forma pauperis, filed

17 this civil rights action pursuant to 42 U.S.C. § 1983.
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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
23 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required
24 regardless of the relief sought by the prisoner and regardless of the relief offered by the process,
25 Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits
26 relating to prison life, Porter v. Nussle, 435 U.S. 516 (2002).
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In the Complaint, under each of his claims, Plaintiff checked the box that confirms there

28 are administrative remedies available at his institution, and indicates that he submitted a request

1 for administrative relief on each of his claims. (Doc. 1, pp. 3-5.) However, Plaintiff neither
2 checked whether he appealed his request for relief on each claim to the highest level, nor provided
3 any explanation for failing to do so. (Id.) Thus, it appears Plaintiff filed suit prematurely without
4 first exhausting in compliance with section 1997e(a). Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th
5 Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal. . . .”).
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Accordingly, Plaintiff is HEREBY ORDERED to show cause within thirty (30) days from

7 the date of service of this order why this action should not be dismissed, without prejudice, for
8 failure to exhaust administrative remedies prior to filing suit.
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IT IS SO ORDERED.

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December 2, 2016

/s/

UNITED STATES MAGISTRATE JUDGE

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Sheila K. Oberto

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