Kinder v. Munoz et al
Filing
19
ORDER DISMISSING ACTION, Without Prejudice, for Plaintiff's Failure to Exhaust His Administrative Remedies signed by Magistrate Judge Barbara A. McAuliffe on 10/6/2017. CASE CLOSED. (Jessen, A)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
BOBBY LEE KINDER, JR.,
12
13
14
15
Plaintiff,
v.
Case No. 1:16-cv-01793-BAM (PC)
ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, FOR PLAINTIFF’S FAILURE
TO EXHAUST HIS ADMINISTRATIVE
REMEDIES
L. MUNOZ, et al.,
(ECF No. 12)
Defendants.
16
17
Plaintiff Bobby Lee Kinder, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in
18
forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff consented to
19
magistrate judge jurisdiction. (ECF No. 7.)
20
Plaintiff initiated this action by filing a complaint on November 28, 2016, asserting three
21
separate claims. (ECF No. 1.) In his complaint, Plaintiff conceded that he did not submit a
22
request for administrative relief on his first and third claims and, although he submitted a request
23
for administrative relief on his second claim, he did not appeal that request to the highest level.
24
(Id. at 3, 4, 5.) Thus, on June 30, 2017, the Court issued an order for Plaintiff to show cause why
25
this action should not be dismissed, without prejudice, for failure to exhaust prior to filing suit.
26
Plaintiff was directed to file a response within twenty-one days. (ECF No. 12.)
27
28
On July 10, 2017, the Court received a notice of change of address for Plaintiff dated July
5, 2017. (ECF No. 13.) Plaintiff did not otherwise respond to the Court’s order. Thus, on
1
1
August 3, 2017, the Court issued an order dismissing this action, without prejudice, for failure to
2
exhaust prior to filing suit. (ECF No. 14.) Judgment was entered accordingly the same day.
3
(ECF No. 15.)
4
On September 9, 2017, Plaintiff filed a motion for 21-day extension of time. (ECF No.
5
16.) The Court granted the motion, construed as a motion for reconsideration, vacated the August
6
3, 2017 judgment, and directed Plaintiff to respond to the June 30, 2017 show cause order within
7
twenty-one days. (ECF No. 17.)
Currently before the Court is Plaintiff’s response to the Court’s show cause order, filed on
8
9
June 30, 2017. (ECF No. 12.) Plaintiff’s response again fails to allege any facts suggesting that
10
he filed, or made any effort to file, a prison grievance related to his first and third claims.
11
Plaintiff further fails to allege any facts explaining why he failed to appeal his administrative
12
request for relief on his second claim to the highest level. Nor does Plaintiff allege facts
13
suggesting repeated rejections of his grievances generally so as to give rise to a reasonable good
14
faith belief that administrative remedies were effectively unavailable. See Sapp v. Kimbrell, 623
15
F.3d 813, 826 (9th Cir. 2010). At most, Plaintiff suggests that his administrative remedies are
16
exhausted because Defendant Munoz “was wrong” and Internal Affairs is still investigating
17
Plaintiff’s claims, which could take up to 4 years. (ECF No. 18, p. 6.) This is not sufficient to
18
demonstrate exhaustion or the unavailability of administrative remedies.
Pursuant to the Prison Litigation Reform Act of 1996, “[n]o action shall be brought with
19
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 (2007); McKinney
24
v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002). Exhaustion is required regardless of the
25
relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner,
26
532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison
27
life, Porter v. Nussle, 435 U.S. 516, 532 (2002).
28
///
2
1
In rare cases where a failure to exhaust is clear from the face of the complaint, it may be
2
dismissed for failure to state a claim. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir.
3
2014); Medina v. Sacramento Cty. Sheriff’s Dep’t, No. 2:16-cv-0765 AC P, 2016 WL 6038181,
4
at *3 (E.D. Cal. Oct. 14, 2016) (“When it is clear from the face of the complaint and any attached
5
exhibits that a plaintiff did not exhaust his available administrative remedies before commencing
6
an action, the action may be dismissed on screening for failure to state a claim.”); Lucas v. Dir. of
7
Dep’t. of Corrs., 2015 WL 1014037, at *4 (E.D. Cal. Mar. 6, 2015) (relying on Albino and
8
dismissing complaint without prejudice on screening due to plaintiff’s failure to exhaust
9
administrative remedies prior to filing suit).
10
11
12
13
Accordingly, IT IS HEREBY ORDERED that:
1. This action is dismissed, without prejudice, based on Plaintiff’s failure to exhaust
administrative remedies prior to filing suit;
2. The Clerk of the Court is directed to close this case.
14
15
16
IT IS SO ORDERED.
Dated:
/s/ Barbara
October 6, 2017
A. McAuliffe
_
UNITED STATES MAGISTRATE JUDGE
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?