Bays v. Phillips, et al.

Filing 8

ORDER Directing the Clerk of the Court to Assign a District Judge to This Case: CASE ASSIGNED to District Judge Anthony W. Ishii and Magistrate Judge Jennifer L. Thurston. New Case No. 1:17-cv-00811 AWI JLT (PC); FINDINGS and RECOMMENDATION to Dismiss Action Without Prejudice for Failure to Exhaust Administrative Remedies Prior to Filing Suit 1 , 7 , signed by Magistrate Judge Jennifer L. Thurston on 8/30/17: 21-Day Deadline. (Hellings, J)

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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, 12 Plaintiff, 13 v. 14 PHILLIPS, et al., 1:17-cv-00811-JLT (PC) ORDER DIRECTING THE CLERJK OF THE COURT TO ASSIGN A DISTRICT JUDGE TO THIS CASE 16 FINDINGS AND RECOMMENDATION TO DISMISS ACTION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES PRIOR TO FILING SUIT 17 (Docs. 1, 7) 18 21-DAY DEADLINE 15 19 Defendants. Plaintiff filed this action pursuant to 42 U.S.C. § 1983 on June 16, 2017. On July 24, 20 2017, the Court ordered Plaintiff to show cause within twenty 21 days why this action should not 21 be dismissed because of his failure to exhaust available administrative remedies prior to filing suit 22 as was apparent from the face of his Complaint. (Doc. 7, “the OSC.”) More than a month has 23 lapsed without a response from Plaintiff to the OSC. 24 In the OSC, the Court warned Plaintiff the failure to exhaust available administrative 25 remedies prior to filing suit is fatal to an action under § 1983. (Doc. 7.) As stated therein, the 26 Prison Litigation Reform Act of 1995 requires that “[n]o action shall be brought with respect to 27 prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in 28 any jail, prison, or other correctional facility until such administrative remedies as are available 1 1 are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 2 administrative remedies prior to filing suit, Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. 3 4 5 6 7 8 9 10 11 Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002), regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001). The exhaustion requirement applies to all suits relating to prison life. Porter v. Nussle, 435 U.S. 516 (2002). Exhaustion under § 1997(e) is an affirmative defense, Jones, at 216, most commonly raised by a defendant in a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, Albino v. Baca, 747 F.3d 1162, 1169-70 (9th Cir. 2014). However, “the PLRA mandates early judicial screening of prisoner complaints and requires prisoners to exhaust prison grievance procedures before filing suit.” Jones, at 202. Exhaustion is an issue of “judicial administration” that is “appropriately decided early in the proceeding.” Albino, at 1170 (citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 12 (1938) (referring to the “long-settled rule of judicial administration that no one is entitled to 13 judicial relief for a supposed or threatened injury until the prescribed administrative remedy has 14 been exhausted”). Where, as here, a prisoner’s failure to exhaust is clear from the face of the 15 complaint, it is properly addressed at screening for failure to state a claim upon which relief may 16 17 18 19 20 21 22 23 be granted. Albino, at 1168-69. As noted in the OSC, though Plaintiff checked the boxes indicating that he exhausted available administrative remedies through the highest level, this assertion cannot be truthful as Plaintiff signed the Complaint on the same day that the incident occurred -- June 13, 2017 -- and it was filed in this Court three days later. (See Doc. 1.) It is physically impossible for Plaintiff to have filed an inmate appeal and pursued it to the highest level on the same date that the incident he complains of occurred. Thus, it appears Plaintiff filed suit prematurely without first exhausting in compliance with section 1997e(a). Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 24 2003) (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal. . . .”). This 25 action must be dismissed without prejudice because of Plaintiff’s admitted failure to exhaust 26 available administrative remedies prior to filing suit. 27 Accordingly, the Court RECOMMENDS that this action be dismissed without prejudice 28 2 1 for Plaintiff's failure to exhaust available administrative remedies prior to filing suit. 42 U.S.C. § 2 1997e(a). The Clerk’s Office is directed to assign a district judge to this action. 3 These Findings and Recommendations will be submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 21 5 days from the date of service of these Findings and Recommendations, Plaintiff may file written 6 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 7 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 8 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 9 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 IT IS SO ORDERED. 11 12 Dated: August 30, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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