Jones v. Mailroom Officials, et al.

Filing 11

ORDER to SHOW CAUSE why action should not be dismissed for failure to exhaust administrative remedies signed by Magistrate Judge Sheila K. Oberto on 8/15/2017. Show Cause Response due within 21-Days. (Lundstrom, T)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 Case No. 1:17-cv-00281-AWI-SKO (PC) GARLAND A. JONES, 10 11 12 13 14 Plaintiff, v. ORDER FOR PLAINTIFF TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES PRIOR TO FILING SUIT MAILROOM OFFICIALS, et al., (Doc. 1) Defendants. TWENTY-ONE (21) DAY DEADLINE 15 16 Plaintiff, Garland A. Jones, a state prisoner is proceeding pro se and in forma pauperis in 17 this action under to 42 U.S.C. § 1983. Pursuant to the Prison Litigation Reform Act of 1995, 18 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 19 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 20 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners 21 are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 22 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). 23 Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief 24 offered by the process. Booth v. Churner, 532 U.S. 731, 741 (2001). The exhaustion requirement 25 applies to all suits relating to prison life. Porter v. Nussle, 435 U.S. 516 (2002). 26 In the Complaint, Plaintiff alleges that his legal mail has been frequently opened. Plaintiff 27 checked the boxes on the form complaint indicating that administrative remedies are available at 28 the institution. (Doc. 1, pp. 3-5.) However, he checked the boxes that he did not submit a request 1 1 for administrative relief on any of his claims as well as the boxes indicating that he did not appeal 2 his request for relief, on any of his claims, to the highest level. (Id.) In his explanation, Plaintiff 3 wrote “Initial request for administrative relief monetary have filed complaints.” (Id.) This does 4 not adequately explain why Plaintiff did not appeal the issues in his claims to the highest level. 5 It, therefore, appears that Plaintiff filed suit prematurely, without first having exhausted available 6 administrative remedies in compliance with section 1997e(a). Wyatt v. Terhune, 315 F.3d 1108, 7 1120 (9th Cir. 2003) (“A prisoner’s concession to non-exhaustion is a valid ground for dismissal. 8 . . .”). 9 Accordingly, Plaintiff is ORDERED to show cause within 21 days from the date of 10 service of this order why this action should not be dismissed, without prejudice, for his failure to 11 exhaust administrative remedies prior to filing suit. Plaintiff is warned that failure to timely 12 respond to this order will result in dismissal of this action for Plaintiff's failure to obey a 13 court order. 14 15 16 17 IT IS SO ORDERED. Dated: August 15, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2 .

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