Derwin Butler, Sr. v. Escamilla et al
Filing
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ORDER Requiring Plaintiff to SHOW CAUSE Why This Action Should Not Be Dismissed for Failure to Exhaust Administrative Remedies signed by Magistrate Judge Michael J. Seng on 9/12/2017. Show Cause Response due within fourteen (14) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DERWIN BUTLER, SR.,
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Plaintiff,
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v.
ESCAMILLA, et al.,
Defendants.
CASE NO. 1:17-cv-00623-MJS (PC)
ORDER REQUIRING PLAINTIFF TO
SHOW CAUSE WHY THIS ACTION
SHOULD NOT BE DISMISSED FOR
FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES
(ECF NO. 17)
FOURTEEN (14) DAY DEADLINE
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights
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action brought pursuant to 42 U.S.C. § 1983. He has consented to magistrate judge
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jurisdiction. (ECF No. 4.) No other parties have appeared in the action.
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Plaintiff’s Second Amended Complaint (“SAC”) is before the Court for screening.
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In the “Exhaustion of Administrative Remedies” portion of the form Amended Complaint
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filed by Plaintiff, Plaintiff states: “First level response, bypass. Accepted at the second
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level of review granted in part. Third level still waiting on response.” (ECF No. 17.)
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Pursuant to the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be
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brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal
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law, by a prisoner confined in any jail, prison, or other correctional facility until such
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administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
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Therefore, prisoners are required to exhaust all available administrative remedies prior to
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filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007). This requirement is mandatory
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regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001).
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Because exhaustion must precede the filing of the complaint, compliance with
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§ 1997e(a) is not achieved by exhausting administrative remedies while the lawsuit is
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pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).
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A prison inmate in California satisfies the administrative exhaustion requirement
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by following the procedures set forth in §§ 3084.1-3084.8 of Title 15 of the California
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Code of Regulations. In California, inmates “may appeal any policy, decision, action,
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condition, or omission by the department or its staff that the inmate . . . can demonstrate
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as having a material adverse effect upon his or her health, safety, or welfare.” CAL. CODE
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REGS. tit. 15, § 3084.1(a). The inmate must submit their appeal on the proper form, and
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is required to identify the staff member(s) involved as well as describing their
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involvement in the issue. See CAL. CODE REGS. tit. 15, § 3084.2(a). These regulations
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require the prisoner to proceed through three levels of appeal. See CAL. CODE REGS. tit.
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15, §§ 3084.1(b), 3084.2, 3084.7. A decision at the third formal level, which is also
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referred to as the director’s level, is not appealable and concludes a prisoner's
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departmental administrative remedy. See id.
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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. The PLRA’s exhaustion requirement is not
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jurisdictional; it creates an affirmative defense that defendants must plead and prove. Id.
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However, “in those rare cases where a failure to exhaust is clear from the face of the
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complaint,” dismissal for failure to state a claim is appropriate, even at the screening
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stage. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014). See also Wyatt v. Terhune,
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315 F.3d 1108, 1120 (9th Cir. 2003) (stating that “[a] prisoner's concession to
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nonexhaustion is a valid ground for dismissal”), overruled on other grounds by Albino,
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747 F.3d at 1166; Sorce v. Garikpaetiti, No. 14-cv-0327 BEN (JMA), 2014 WL 2506213,
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at *2 (S.D. Cal. June 2, 2014) (relying on Albino and dismissing the complaint on
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screening because “it is clear from the face of [plaintiff's] pleading that he has conceded
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that he failed to exhaust all available administrative remedies . . . before he commenced
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this action”) (emphasis in original).
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It appears from the face of Plaintiff’s complaint that he has not yet exhausted the
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administrative remedies available to him. Accordingly, the Court will require Plaintiff to
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show cause why this action should not be dismissed for failure to exhaust administrative
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remedies. If the Court concludes that Plaintiff has failed to exhaust administrative
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remedies, the proper remedy is dismissal without prejudice, even if Plaintiff has
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exhausted remedies while the suit is pending. Lira v. Herrera, 427 F.3d 1164, 1170-71
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(9th Cir. 2005); 42 U.S.C. § 1997e(a).
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Accordingly, Plaintiff is HEREBY ORDERED to show cause, within fourteen (14)
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days, why this action should not be dismissed for failure to exhaust administrative
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remedies. Failure to respond to this order and to show cause will result in dismissal of
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the action without prejudice for failure to exhaust.
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IT IS SO ORDERED.
Dated:
September 12, 2017
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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