Steward v. Guiteray, et al.
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ROBERT M. STEWARD,
GUITEREZ, et al.,
ORDER TO SHOW CAUSE WHY THIS CASE
SHOULD NOT BE DISMISSED FOR
PLAINTIFF’S FAILURE TO EXHAUST
(ECF No. 1.)
30 DAY DEADLINE TO RESPOND
Plaintiff, Robert M. Steward, is a state prisoner proceeding pro se and in forma
pauperis with this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff filed the
Complaint commencing this action on April 5, 2018. (ECF No. 1.)
In his Complaint, Plaintiff indicates that he did not take any steps to exhaust his
administrative remedies at the prison because of “[a] Jury finding of not guilty.” (ECF No. 1 at
3 ¶5.) Plaintiff asserts that there are no grievance procedures available at his institution, that he
did not submit a request for administrative relief, and that he did not appeal his request for
relief to the highest level. (Id.)
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, 127
S.Ct. 910 (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, 121 S.Ct. 1819 (2001), and the exhaustion
requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122
S.Ct. 983 (2002).
Prisoners are required to exhaust before bringing suit. Booth, 532 U.S. at 741. From
the face of Plaintiff’s Complaint, it appears clear that Plaintiff filed suit prematurely and in
such instances, the case may be dismissed. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir.
2014) (en banc) (where failure to exhaust is clear from face of complaint, case is subject to
dismissal for failure to state a claim under Rule 12(b(6)); Wyatt v. Terhune, 315 F.3d 1108,
1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid ground for
dismissal. . . .”) (overruled on other grounds by Albino, 747 F.3d at 1168-69); see also
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to state a claim
under § 1915A ‘incorporates the familiar standard applied in the context of failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).’”) (quoting Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012)). Therefore, Plaintiff shall be required to show cause why this
case should not be dismissed, without prejudice, for failure to exhaust remedies prior to filing
ORDER TO SHOW CAUSE
In light of the foregoing analysis, Plaintiff is HEREBY ORDERED to respond in
writing to this order, within thirty (30) days of the date of service of this order, showing cause
why this case should not be dismissed for Plaintiff’s failure to exhaust administrative remedies
before filing suit. Failure to respond to this order may result in the dismissal of this case.
IT IS SO ORDERED.
April 11, 2018
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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