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)

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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.

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.

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Plaintiff Bobby Lee Kinder, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff consented to

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magistrate judge jurisdiction. (ECF No. 7.)

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Plaintiff initiated this action by filing a complaint on November 28, 2016, asserting three

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separate claims. (ECF No. 1.) In his complaint, Plaintiff conceded that he did not submit a

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request for administrative relief on his first and third claims and, although he submitted a request

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for administrative relief on his second claim, he did not appeal that request to the highest level.

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(Id. at 3, 4, 5.) Thus, on June 30, 2017, the Court issued an order for Plaintiff to show cause why

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this action should not be dismissed, without prejudice, for failure to exhaust prior to filing suit.

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Plaintiff was directed to file a response within twenty-one days. (ECF No. 12.)

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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
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August 3, 2017, the Court issued an order dismissing this action, without prejudice, for failure to

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exhaust prior to filing suit. (ECF No. 14.) Judgment was entered accordingly the same day.

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(ECF No. 15.)

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On September 9, 2017, Plaintiff filed a motion for 21-day extension of time. (ECF No.

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16.) The Court granted the motion, construed as a motion for reconsideration, vacated the August

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3, 2017 judgment, and directed Plaintiff to respond to the June 30, 2017 show cause order within

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twenty-one days. (ECF No. 17.)
Currently before the Court is Plaintiff’s response to the Court’s show cause order, filed on

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June 30, 2017. (ECF No. 12.) Plaintiff’s response again fails to allege any facts suggesting that

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he filed, or made any effort to file, a prison grievance related to his first and third claims.

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Plaintiff further fails to allege any facts explaining why he failed to appeal his administrative

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request for relief on his second claim to the highest level. Nor does Plaintiff allege facts

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suggesting repeated rejections of his grievances generally so as to give rise to a reasonable good

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faith belief that administrative remedies were effectively unavailable. See Sapp v. Kimbrell, 623

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F.3d 813, 826 (9th Cir. 2010). At most, Plaintiff suggests that his administrative remedies are

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exhausted because Defendant Munoz “was wrong” and Internal Affairs is still investigating

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Plaintiff’s claims, which could take up to 4 years. (ECF No. 18, p. 6.) This is not sufficient to

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demonstrate exhaustion or the unavailability of administrative remedies.
Pursuant to the Prison Litigation Reform Act of 1996, “[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

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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 (2007); McKinney

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

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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 (2001), and the exhaustion requirement applies to all suits relating to prison

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life, Porter v. Nussle, 435 U.S. 516, 532 (2002).

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In rare cases where a failure to exhaust is clear from the face of the complaint, it may be

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dismissed for failure to state a claim. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir.

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2014); Medina v. Sacramento Cty. Sheriff’s Dep’t, No. 2:16-cv-0765 AC P, 2016 WL 6038181,

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

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

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

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Dep’t. of Corrs., 2015 WL 1014037, at *4 (E.D. Cal. Mar. 6, 2015) (relying on Albino and

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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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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.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 6, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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