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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ROBERT M. STEWARD, Plaintiff, 10 11 12 13 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 14 15 Plaintiff, Robert M. Steward, is a state prisoner proceeding pro se and in forma 16 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. 17 Plaintiff filed the Complaint commencing this action on April 5, 2018. (ECF No. 1.) 18 In his Complaint, Plaintiff indicates that he did not take any steps to exhaust his 19 administrative remedies at the prison because of “[a] Jury finding of not guilty.” (ECF No. 1 at 20 3 ¶5.) Plaintiff asserts that there are no grievance procedures available at his institution, that he 21 did not submit a request for administrative relief, and that he did not appeal his request for 22 relief to the highest level. (Id.) 23 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 24 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 25 confined in any jail, prison, or other correctional facility until such administrative remedies as 26 are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the 27 available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 28 S.Ct. 910 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion 1 1 is required regardless of the relief sought by the prisoner and regardless of the relief offered by 2 the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion 3 requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 4 S.Ct. 983 (2002). 5 Prisoners are required to exhaust before bringing suit. Booth, 532 U.S. at 741. From 6 the face of Plaintiff’s Complaint, it appears clear that Plaintiff filed suit prematurely and in 7 such instances, the case may be dismissed. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 8 2014) (en banc) (where failure to exhaust is clear from face of complaint, case is subject to 9 dismissal for failure to state a claim under Rule 12(b(6)); Wyatt v. Terhune, 315 F.3d 1108, 10 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid ground for 11 dismissal. . . .”) (overruled on other grounds by Albino, 747 F.3d at 1168-69); see also 12 Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to state a claim 13 under § 1915A ‘incorporates the familiar standard applied in the context of failure to state a 14 claim under Federal Rule of Civil Procedure 12(b)(6).’”) (quoting Wilhelm v. Rotman, 680 15 F.3d 1113, 1121 (9th Cir. 2012)). Therefore, Plaintiff shall be required to show cause why this 16 case should not be dismissed, without prejudice, for failure to exhaust remedies prior to filing 17 suit. 18 ORDER TO SHOW CAUSE 19 In light of the foregoing analysis, Plaintiff is HEREBY ORDERED to respond in 20 writing to this order, within thirty (30) days of the date of service of this order, showing cause 21 why this case should not be dismissed for Plaintiff’s failure to exhaust administrative remedies 22 before filing suit. Failure to respond to this order may result in the dismissal of this case. 23 24 25 26 IT IS SO ORDERED. Dated: April 11, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28 2

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