Kinder v. Munoz et al

Filing 12

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 Barbara A. McAuliffe on 6/30/17. Show Cause Response Due Within Twenty One Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BOBBY LEE KINDER, JR.,

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Plaintiff,
v.
L. MUNOZ, et al.,
Defendants.

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Case No.: 1:16-cv-01793-BAM (PC)
ORDER REQUIRING PLAINTIFF TO SHOW
CAUSE WHY ACTION SHOULD NOT BE
DISMISSED, WITHOUT PREJUDICE, FOR
FAILURE TO EXHAUST PRIOR TO FILING SUIT
(ECF No. 1)
TWENTY-ONE DAY DEADLINE

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Plaintiff Bobby Lee Kinder, Jr., a state prisoner proceeding pro se and in forma pauperis, filed
this civil rights action pursuant to 42 U.S.C. § 1983 on November 28, 2016.
Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be brought

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with 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 of

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

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

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

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Plaintiff asserts three separate claims in this action. In his complaint, Plaintiff concedes that he

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did not submit a request for administrative relief on his first and third claims and, although he

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submitted a request for administrative relief on his second claim, he did not appeal that request to the

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highest level. (ECF No. 1, pp. 3, 4, 5.) Thus, it appears Plaintiff filed suit prematurely without first

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exhausting his administrative remedies in compliance with the PLRA, 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); Medina v. Sacramento Cty. Sheriff’s Dep’t, No. 2:16-cv-0765 AC P, 2016

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WL 6038181, at *3 (E.D. Cal. Oct. 14, 2016) (“When it is clear from the face of the complaint and any

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attached exhibits that a plaintiff did not exhaust his available administrative remedies before

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commencing an action, the action may be dismissed on screening for failure to state a claim.”); Lucas

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v. Director of Dept. of Corrections, 2015 WL 1014037, at *4 (E.D. Cal. Mar. 6, 2015) (relying on

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Albino and dismissing complaint without prejudice on screening due to plaintiff’s failure to exhaust

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administrative remedies prior to filing suit).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 30, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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