Bays v. Phillips, et al.

Filing 7

ORDER for Plaintiff to SHOW CAUSE why this action should not be dismissed without prejudice for failing to exhaust his administrative remedies,signed by Magistrate Judge Jennifer L. Thurston on 07/24/17. Show Cause Response due 21-Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY WAYNE BAYS,
Plaintiff,

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v.

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PHILLIPS, et al.,

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Case No. 1:17-cv-00811-JLT (PC)
ORDER FOR PLAINTIFF TO SHOW CAUSE
WHY THIS ACTION SHOULD NOT BE
DISMISSED WITHOUT PREJUDICE FOR
FAILING TO EXHAUST HIS ADMINISTRATIVE
REMEDIES
(Doc. 1)

Defendants.
21-DAY DEADLINE

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Plaintiff filed this action pursuant to 42 U.S.C. § 1983 on June 16, 2017. Pursuant to the

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Prison Litigation Reform Act of 1995, “[n]o action shall be brought with respect to prison

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conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail,

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prison, or other correctional facility until such administrative remedies as are available are

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exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative

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remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311

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F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by

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the prisoner and regardless of the relief offered by the process. Booth v. Churner, 532 U.S. 731,

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741 (2001). The exhaustion requirement applies to all suits relating to prison life. Porter v.

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Nussle, 435 U.S. 516 (2002).

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In the Complaint, Plaintiff alleges that he is highly allergic to onion and onion powder
and, on June 13, 2017, he went into a severe allergic reaction when he was wrongly served a meal
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which included a salad with ranch dressing that contained onion powder. Plaintiff checked the

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boxes on the form complaint indicating that administrative remedies are available at the

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institution, that he submitted a grievance on his claims, and that he appealed it to the highest

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level. However, this assertion cannot be truthful as Plaintiff signed the Complaint on the same

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day that the incident occurred -- June 13, 2017 -- and it was filed in this Court three days later. It

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is physically impossible for Plaintiff to have filed an inmate appeal and pursued it to the highest

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level on the same date that the incident he complains of occurred. Thus, it appears Plaintiff filed

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suit prematurely without first exhausting in compliance with section 1997e(a). Wyatt v. Terhune,

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315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid ground

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for dismissal. . . .”).
Accordingly, Plaintiff is ORDERED to show cause within 21 days from the date of

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service of this order why this action should not be dismissed, without prejudice, for his failure to

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exhaust administrative remedies prior to filing suit. Plaintiff is warned that failure to timely

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respond to this order will result in dismissal of this action for Plaintiff's failure to obey a

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court order.

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IT IS SO ORDERED.
Dated:

July 24, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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