Villanueva v. Voshall et al

Filing 9

ORDER Requiring Plaintiff to SHOW CAUSE Why Action Should Not be Dismissed, without Prejudice, for Failure to Exhaust Prior Filing Suit, signed by Magistrate Judge Barbara A. McAuliffe on 5/14/18. Show Cause Response Due Within 21-Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEREMY VILLANUEVA,

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Plaintiff,

ORDER REQUIRING PLAINTIFF TO SHOW
CAUSE WHY ACTION SHOULD NOT BE
DISMISSED, WITHOUT PREJUDICE, FOR
FAILURE TO EXHAUST PRIOR TO FILING
SUIT

Defendants.

(ECF No. 1)

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v.

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VOSHALL, et al.,

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Case No. 1:17-cv-01586-BAM (PC)

TWENTY-ONE (21) DAY DEADLINE

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Plaintiff Jeremy Villanueva (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was initiated on

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November 29, 2017. (ECF No. 1.)

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Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be

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brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a

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prisoner confined in any jail, prison, or other correctional facility until such administrative

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

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the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211

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(2007); McKinney v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002). Exhaustion is required

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regardless of the relief sought by the prisoner and regardless of the relief offered by the process,

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Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits
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relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002).
Plaintiff asserts two separate claims in this action. In his complaint, Plaintiff concedes

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that he did not appeal either claim to the highest level, stating that “emergency relief is needed,

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but I started appeal process to 1st level.” (ECF No. 1, pp. 3, 4.) Thus, it appears Plaintiff filed

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suit prematurely without first exhausting his administrative remedies in compliance with the

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PLRA, section 1997e(a).

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Accordingly, Plaintiff is HEREBY ORDERED to show cause within twenty-one (21)

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days from the date of service of this order why this action should not be dismissed, without

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prejudice, for failure to exhaust prior to filing suit. See, e.g., Albino v. Baca, 747 F.3d 1162,

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1169 (9th Cir. 2014) (in rare cases where a failure to exhaust is clear from the face of the

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complaint, it may be dismissed for failure to state a claim); Medina v. Sacramento Cty. Sheriff’s

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Dep’t, No. 2:16-cv-0765 AC P, 2016 WL 6038181, at *3 (E.D. Cal. Oct. 14, 2016) (“When it is

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clear from the face of the complaint and any attached exhibits that a plaintiff did not exhaust his

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available administrative remedies before commencing an action, the action may be dismissed on

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screening for failure to state a claim.”); Lucas v. Dir. of Dep’t. of Corrs., 2015 WL 1014037, at

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*4 (E.D. Cal. Mar. 6, 2015) (relying on Albino and dismissing complaint without prejudice on

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screening due to plaintiff’s failure to exhaust administrative remedies prior to filing suit).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

May 14, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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