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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY WAYNE BAYS, Plaintiff, 12 13 v. 14 PHILLIPS, et al., 15 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 16 17 Plaintiff filed this action pursuant to 42 U.S.C. § 1983 on June 16, 2017. Pursuant to the 18 Prison Litigation Reform Act of 1995, “[n]o action shall be brought with respect to prison 19 conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, 20 prison, or other correctional facility until such administrative remedies as are available are 21 exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative 22 remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 23 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by 24 the prisoner and regardless of the relief offered by the process. Booth v. Churner, 532 U.S. 731, 25 741 (2001). The exhaustion requirement applies to all suits relating to prison life. Porter v. 26 Nussle, 435 U.S. 516 (2002). 27 28 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 1 1 which included a salad with ranch dressing that contained onion powder. Plaintiff checked the 2 boxes on the form complaint indicating that administrative remedies are available at the 3 institution, that he submitted a grievance on his claims, and that he appealed it to the highest 4 level. However, this assertion cannot be truthful as Plaintiff signed the Complaint on the same 5 day that the incident occurred -- June 13, 2017 -- and it was filed in this Court three days later. It 6 is physically impossible for Plaintiff to have filed an inmate appeal and pursued it to the highest 7 level on the same date that the incident he complains of occurred. Thus, it appears Plaintiff filed 8 suit prematurely without first exhausting in compliance with section 1997e(a). Wyatt v. Terhune, 9 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid ground 10 11 for dismissal. . . .”). Accordingly, Plaintiff is ORDERED to show cause within 21 days from the date of 12 service of this order why this action should not be dismissed, without prejudice, for his failure to 13 exhaust administrative remedies prior to filing suit. Plaintiff is warned that failure to timely 14 respond to this order will result in dismissal of this action for Plaintiff's failure to obey a 15 court order. 16 17 18 19 IT IS SO ORDERED. Dated: July 24, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2

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