Gilbert Osuna v. E. Manzanalez et al

Filing 29

ORDER to SHOW CAUSE Why this Action should not be Dismissed, without Prejudice, for the Failure to Exhaust Available Administrative Remedies; Show Cause Response due within Thirty (30) Days signed by Magistrate Judge Stanley A. Boone on 10/18/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GILBERT OSUNA,
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Plaintiff,
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v.
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E. MANZANALEZ, et al.,
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Defendants.
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Case No.: 1:18-cv-00719-LJO-SAB (PC)
ORDER TO SHOW CAUSE WHY THIS ACTION
SHOULD NOT BE DISMISSED, WITHOUT
PREJUDICE, FOR THE FAILURE TO EXHAUST
AVAILABLE ADMINISTRATIVE REMEDIES
(ECF No. 28)

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I.

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INTRODUCTION
Plaintiff Gilbert Osuna is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983.

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Plaintiff initiated this action by filing a complaint on August 24, 2017, in the United States

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District Court for the Central District of California. (ECF No. 1.) Following several rulings on

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various issues, on May 25, 2018, this matter was transferred to this Court. (ECF No. 16.) The Clerk

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of the Court then directed the California Department of Corrections and Rehabilitation to submit a

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certified prison trust account statement so that the Court could evaluate Plaintiff’s then-pending

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application to proceed in forma pauperis. (ECF No. 17.) That certified statement was filed on May

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29, 2018. (ECF No. 19.) The Court then granted Plaintiff’s application on June 1, 2018. (ECF No.

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20.)
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Plaintiff then filed a series of motions in this matter, on June 25, 2018, (ECF No. 23), and on

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August 6, 2018, (ECF No. 25), seeking to advise the Court of potential issues with a fraudulent notice

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of dismissal, and some confusion as to the status of his case. Those motions were ruled upon on June

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25, 2018, (ECF No. 24), and August 9, 2018, (ECF No. 26), respectively, in which the Court informed

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Plaintiff that it had received no notice of dismissal, and advised him of the status of this matter.

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On October 4, 2018, the Court screened Plaintiff’s complaint and found that he had stated a

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cognizable claim for excessive force against Defendants Manzanalez, Mesa, and Ibarra, and that the

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complaint contained certain deficiencies. (ECF No. 27.) The Court ordered Plaintiff to either file an

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amended complaint, or notify the Court of his intent to proceed upon the cognizable claim identified

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by the Court. (Id. at 9.)
Currently before the Court is Plaintiff’s first amended complaint, filed on October 17, 2018.
(Doc. No. 28.)

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II.

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EXHAUSTION OF ADMINISTRATIVE REMEDIES

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Plaintiff’s original complaint attached some documents showing that he filed a staff complaint

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through the prison administrative grievance process, and he alleged that the complaint concerned his

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allegations in this action and the injuries suffered. (Compl., ECF No. 1, at 7-13.) Those attachments

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include a staff complaint, some screening and rejection letters, and an appeal assignment notice stating

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that Plaintiff’s appeal was sent for a second level response. (Id.) The documents show that Plaintiff

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eventually received a second level response regarding the staff complaint, sometime in May or June

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2017, stating that the complaint was partially granted in that an appeal inquiry into his allegation was

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conducted. (See id. at 9-10.) The documents discuss that Plaintiff may appeal to the Third Level, and

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that once a Third Level decision is rendered, his administrative remedies would be considered

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exhausted. (Id.)

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In the first amended complaint, Plaintiff has made additional allegations regarding the

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exhaustion of available administrative remedies. (First Am. Compl., ECF No. 28, at 2.) He states that

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he tried to complete the appeal process, and made it to the Second Level, but kept getting rejected. He

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further states that his appeals information was sent to the United States District Court for the Central
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District of California. It appears that Plaintiff refers to the documents which were attached to his

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original complaint.

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Pursuant to the Prison Litigation Reform Act of 1996 (“PLRA”), “[n]o action shall be brought

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with 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 are

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

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administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v.

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Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002). Exhaustion is required regardless of the relief

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sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S.

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731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v.

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Nussle, 435 U.S. 516, 532 (2002).

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In rare cases where a failure to exhaust is clear from the face of the complaint, it may be

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dismissed for failure to state a claim. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014);

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Medina v. Sacramento Cty. Sheriff’s Dep’t, No. 2:16-cv-0765 AC P, 2016 WL 6038181, at *3 (E.D.

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Cal. Oct. 14, 2016) (“When it is clear from the face of the complaint and any attached exhibits that a

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plaintiff did not exhaust his available administrative remedies before commencing an action, the action

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may be dismissed on screening for failure to state a claim.”); Lucas v. Dir. of Dep’t. of Corrs., No.

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2:14-cv-0590-DAD P, 2015 WL 1014037, at *4 (E.D. Cal. Mar. 6, 2015) (relying on Albino and

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dismissing complaint without prejudice on screening due to plaintiff’s failure to exhaust administrative

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remedies prior to filing suit).

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Here, based on Plaintiff’s allegations and exhibits attached to his pleadings, it appears that he

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has not fully exhausted available administrative remedies prior to suing. His allegations suggest that

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he ceased litigating his appeal at the Second Level, and did not file an appeal to the highest level or

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receive a decision at that level prior to filing suit. Thus, it appears Plaintiff filed suit prematurely

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without first exhausting his administrative remedies in compliance with the PLRA, section 1997e(a).

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III.

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CONCLUSION

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Accordingly, it is HEREBY ORDERED that

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1.

Plaintiff must show cause in writing within thirty (30) days from the date of service of

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this order why this action should not be dismissed, without prejudice, for failure to exhaust prior to

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filing suit; and
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The failure to comply with this order or to show good cause will result in dismissal of

this action.

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IT IS SO ORDERED.

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Dated:

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October 18, 2018
UNITED STATES MAGISTRATE JUDGE

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