Ovalle v. Sutton

Filing 10

ORDER DIRECTING Clerk to Randomly Assign Action to a District Judge; FINDINGS and RECOMMENDATIONS to: (1) Deny 9 Motion for Leave to Exhaust All State Remedies; and (2) Dismiss Action 1 Without Prejudice for Failure to Exhaust, signed by Magistr ate Judge Michael J. Seng on 2/21/17. Objections to F&R Due Within Fourteen Days. This case has been assigned to District Judge Dale A. Drozd and Magistrate Judge Michael J. Seng. The new case number is 1:17-cv-00080-DAD-MJS (PC). (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTURO OVALLE,

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Plaintiff,
v.
SUTTON, et al.,
Defendants.

CASE No. 1:17-cv-00080-MJS (PC)
ORDER
DIRECTING
CLERK
TO
RANDOMLY ASSIGN ACTION TO A
DISTRICT JUDGE
FINDINGS
TO:

AND RECOMMENDATIONS

(1) DENY MOTION FOR LEAVE TO
EXHAUST ALL STATE REMEDIES
(ECF NO. 9); AND
(2) DISMISS ACTION WITHOUT
PREJUDICE FOR FAILURE TO
EXHAUST

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FOURTEEN
DEADLINE

(14)

DAY

OBJECTION

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action brought pursuant to 42 U.S.C. § 1983. On January 25, 2017, the Court
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screened Plaintiff’s complaint and dismissed it with leave to amend. (ECF No. 8.) The
Court noted that Plaintiff’s complaint failed to state a claim, and also that Plaintiff’s failure

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to exhaust administrative remedies was plain from the face of the complaint.
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On February 8, 2017, Plaintiff filed a “Motion for Leave to Exhaust All State

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Remedies.” (ECF No. 9.) Therein, Plaintiff concedes he has not exhausted

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administrative remedies and appears to seek a stay of the action pending exhaustion.

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Pursuant to the Prison Litigation Reform Act (“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

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a prisoner confined in any jail, prison, or other correctional facility until such

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administrative remedies as are available are exhausted.”

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Prisoners are required to exhaust the available administrative remedies prior to filing

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suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198,

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1199-1201 (9th Cir. 2002). Because exhaustion must precede the filing of the complaint,

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compliance with § 1997e(a) is not achieved by exhausting administrative remedies while

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the lawsuit is pending. See McKinney, 311 F.3d at 1199.

42 U.S.C. § 1997e(a).

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“[I]nmates are not required to specially plead or demonstrate exhaustion in their

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complaints.” Jones, 549 U.S. at 216. However, “in those rare cases where a failure to

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exhaust is clear from the face of the complaint,” dismissal for failure to state a claim is

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appropriate, even at the screening stage. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir.

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2014). See also Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (stating that “[a]

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prisoner's concession to nonexhaustion is a valid ground for dismissal”), overruled on

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other grounds by Albino, 747 F.3d at 1166; Sorce v. Garikpaetiti, 2014 WL 2506213

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(S.D. Cal. June 2, 2014) (relying on Albino and dismissing the complaint on screening

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because “it is clear from the face of [plaintiff's] pleading that he has conceded that he

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failed to exhaust all available administrative remedies . . . before he commenced this

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action”).

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Here, Plaintiff concedes that he did not exhaust administrative remedies. In such

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circumstances, dismissal is warranted. See McKinney, 311 F.3d at 1199; Albino, 747

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F.3d at 1169. To the extent Plaintiff’s motion for leave to exhaust requests a stay of the

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proceedings, it should be denied.

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2

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Plaintiff did not respond to the Court’s order requiring him to consent to or decline

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Magistrate Judge jurisdiction. Accordingly, the Clerk’s Office is HEREBY DIRECTED to

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randomly assign this matter to a District Judge pursuant to Local Rule 120(e).

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Furthermore, it is HEREBY RECOMMENDED that:

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1. Plaintiff’s motion for leave to exhaust (ECF No. 9) be DENIED; and

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2. The action be dismissed without prejudice for failure to exhaust

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administrative remedies.

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The findings and recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with the findings and recommendations, the

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parties may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” A party may

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respond to another party’s objections by filing a response within fourteen (14) days after

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being served with a copy of that party’s objections. The parties are advised that failure to

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file objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

February 21, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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