Reynolds v. Rouch et al

Filing 5

ORDER to SHOW CAUSE why this Case Should not be Dismissed without Prejudice for Failure to Exhaust, signed by Magistrate Judge Erica P. Grosjean on 8/3/17. Show Cause Response Due Within Thirty Days. (Gonzalez, R)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 9 10 11 Case No. 1:17-cv-01029-EPG (PC) DYLLIN REYNOLDS, Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO EXHAUST v. P. ROUCH, et al., (ECF NO. 1) Defendants. THIRTY DAY DEADLINE 12 13 14 Dyllin Reynolds (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 15 action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action 16 on August 2, 2017. (ECF No. 1). The complaint is awaiting screening. 17 The Court has conducted a preliminary review of the complaint, and it appears that 18 Plaintiff has failed to exhaust his available administrative remedies. Plaintiff has stated that 19 there is a grievance procedure available at his institution and that he filed a grievance 20 concerning the facts related to the complaint, but that he did not complete the grievance 21 process. (Id. at 2.). 22 42 U.S.C. § 1997e(a) states that “[n]o action shall be brought with respect to prison 23 conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in 24 any jail, prison, or other correctional facility until such administrative remedies as are available 25 are exhausted.” Exhaustion is required regardless of the relief sought by the prisoner and 26 regardless of the relief offered by the administrative process, unless “the relevant 27 administrative procedure lacks authority to provide any relief or to take any action whatsoever 28 in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); Ross v. Blake, 1 1 136 S.Ct. 1850, 1857, 1859 (June 6, 2016). 2 Exhaustion of administrative remedies must occur before the filing of the complaint. 3 McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The Court notes that a dismissal for 4 failure to exhaust is without prejudice. Id. 5 While there are no “special circumstances” exceptions to the exhaustion requirement, 6 Ross, 136 S.Ct. at 1862, “the [administrative] remedies must indeed be ‘available’ to the 7 prisoner.” Id. at 1856. 8 Based on the face of Plaintiff’s complaint, it appears that Plaintiff has failed to exhaust 9 his available administrative remedies. Therefore, the Court will order Plaintiff to show cause 10 why this case should not be dismissed, without prejudice, for failure to exhaust available 11 administrative remedies. 12 Accordingly, based on the foregoing, it is HEREBY ORDERED that within thirty (30) 13 days from the date of service of this order, Plaintiff shall show cause why this case should not 14 be dismissed, without prejudice, for failure to exhaust available administrative remedies. 15 Failure to respond may result in dismissal of this case. 16 17 18 IT IS SO ORDERED. Dated: August 3, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2

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