Steward v. Guiteray, et al.

Filing 8

ORDER to SHOW CAUSE Why this Case should not be Dismissed for Plaintiff's Failure to Exhaust Administrative Remedies; Show Cause Response due in Thirty (30) Days signed by Magistrate Judge Gary S. Austin on 4/11/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT M. STEWARD,
Plaintiff,

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v.
GUITEREZ, et al.,
Defendants.

1:18-cv-00462-GSA-PC
ORDER TO SHOW CAUSE WHY THIS CASE
SHOULD NOT BE DISMISSED FOR
PLAINTIFF’S FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES
(ECF No. 1.)
30 DAY DEADLINE TO RESPOND

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Plaintiff, Robert M. Steward, is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983.

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Plaintiff filed the

Complaint commencing this action on April 5, 2018. (ECF No. 1.)

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In his Complaint, Plaintiff indicates that he did not take any steps to exhaust his

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administrative remedies at the prison because of “[a] Jury finding of not guilty.” (ECF No. 1 at

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3 ¶5.) Plaintiff asserts that there are no grievance procedures available at his institution, that he

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did not submit a request for administrative relief, and that he did not appeal his request for

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relief to the highest level. (Id.)

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Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with

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

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

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

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available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127

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S.Ct. 910 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion
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is required regardless of the relief sought by the prisoner and regardless of the relief offered by

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the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion

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requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122

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S.Ct. 983 (2002).

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Prisoners are required to exhaust before bringing suit. Booth, 532 U.S. at 741. From

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the face of Plaintiff’s Complaint, it appears clear that Plaintiff filed suit prematurely and in

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such instances, the case may be dismissed. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir.

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2014) (en banc) (where failure to exhaust is clear from face of complaint, case is subject to

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dismissal for failure to state a claim under Rule 12(b(6)); Wyatt v. Terhune, 315 F.3d 1108,

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1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid ground for

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dismissal. . . .”) (overruled on other grounds by Albino, 747 F.3d at 1168-69); see also

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Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to state a claim

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under § 1915A ‘incorporates the familiar standard applied in the context of failure to state a

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claim under Federal Rule of Civil Procedure 12(b)(6).’”) (quoting Wilhelm v. Rotman, 680

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F.3d 1113, 1121 (9th Cir. 2012)). Therefore, Plaintiff shall be required to show cause why this

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case should not be dismissed, without prejudice, for failure to exhaust remedies prior to filing

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suit.

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ORDER TO SHOW CAUSE

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In light of the foregoing analysis, Plaintiff is HEREBY ORDERED to respond in

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writing to this order, within thirty (30) days of the date of service of this order, showing cause

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why this case should not be dismissed for Plaintiff’s failure to exhaust administrative remedies

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before filing suit. Failure to respond to this order may result in the dismissal of this case.

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IT IS SO ORDERED.
Dated:

April 11, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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