Johnson v. California Correctional Institution et al

Filing 12

ORDER for Plaintiff to SHOW CAUSE Why this Action should not be Dismissed without Prejudice for Failing to Exhaust Administrative Remedies Prior to Filing Suit; Twenty-One (21) Day Deadline; Clerk of the Court to Assign a District Judge signed by Magistrate Judge Sheila K. Oberto on 11/14/2017. (Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 Case No. 1:17-cv-01126-SKO (PC) 9 10 SEDRIC EUGENE JOHNSON, Plaintiff, 11 v. 12 13 CALIFORNIA CORRECTIONAL INSTITUTION, et al., ORDER FOR PLAINTIFF TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED WITHOUT PREJUDICE FOR FAILING TO EXHAUST ADMINISTRATIVE REMEDIES PRIOR TO FILING SUIT (Doc. 1) TWENTY-ONE (21) DAY DEADLINE 14 Defendants. CLERK OF THE COURT TO ASSIGN A DISTRICT JUDGE 15 16 17 Plaintiff, Sedric Eugene Johnson, a state prisoner is proceeding pro se and in forma 18 19 20 21 22 23 24 25 pauperis in this action under to 42 U.S.C. § 1983. Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required 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 26 requirement applies to all suits relating to prison life. Porter v. Nussle, 435 U.S. 516 (2002). 27 /// 28 1 1 In the form complaint, Plaintiff checked the box indicating that administrative remedies 2 are available at the institution. (Doc. 1, p. 3.) He also checked the boxes indicating that he did 3 not submit a request for administrative relief on any of his claims, as well as the boxes indicating 4 that he did not appeal his request for relief--on any of his claims--to the highest level. (Id.) As an 5 explanation, Plaintiff wrote “Due to it being a simple offence made against me in which I was 6 disciplined interdepartment (sic) I felt it (sic) was no need to correct their argument when it was 7 quite obvious whom was at fault and in a failure (sic) to do their job however, in other routes 8 afforded, I have reached out to the numerous different state appointed agencies in the (sic) 9 bringing to their attention.” (Id.) This is an insufficient explanation for not having filed an 10 inmate appeal or grievance at the institution and not having appealed it to the highest level. It, 11 therefore, appears that Plaintiff filed suit prematurely, without first having exhausted available 12 administrative remedies in compliance with section 1997e(a). Wyatt v. Terhune, 315 F.3d 1108, 13 1120 (9th Cir. 2003) (“A prisoner’s concession to non-exhaustion is a valid ground for dismissal 14 . . .”). Accordingly, Plaintiff is ORDERED to show cause within 21 days from the date of 15 16 service of this order why this action should not be dismissed, without prejudice, for his failure to 17 exhaust administrative remedies prior to filing suit. The Clerk of the Court is directed to assign a 18 district judge to this action. Plaintiff is warned that failure to timely respond to this order will result in 19 20 recommendation of dismissal without prejudice for Plaintiff’s failure to obey a court order. 21 22 23 24 IT IS SO ORDERED. Dated: November 14, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2 .

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