Hicks v. Sexton et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that this case be Dismissed, without prejudice, for Plaintiff's failure to exhaust his available adiministratice remedies before filing suit; Clerk to Close Case ; referred to Judge O'Neill, signed by Magistrate Judge Gary S. Austin on 8/23/2018. Objections to F&R due 14-Day Deadline (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL J. HICKS,
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Plaintiff,
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vs.
M. V. SEXTON, et al.,
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Defendants.
1:18-cv-00764-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITHOUT PREJUDICE, FOR
FAILURE TO EXHAUST REMEDIES
BEFORE FILING SUIT
(ECF No. 1.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS
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I.
BACKGROUND
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Michael J. Hicks (“Plaintiff”) 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. On June 5, 2018, Plaintiff
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filed the Complaint commencing this action. (ECF No. 1.)
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On August 20, 2018, Plaintiff filed a request for the court to change the filing date of
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the Complaint because he did not exhaust his administrative remedies until July 13, 2018.
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(ECF No. 15.) On August 21, 2018, the court issued an order denying the request. (ECF No.
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16.)
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II.
EXHAUSTION OF REMEDIES
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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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A prisoner may be excused from complying with the PLRA’s exhaustion requirement if
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he establishes that the existing administrative remedies were effectively unavailable to him. See
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Albino v. Baca, 747 F.3d 1162, 1172-73 (9th Cir. 2014). When an inmate’s administrative
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grievance is improperly rejected on procedural grounds, exhaustion may be excused as
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“effectively unavailable.” Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010); see also Nunez
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v. Duncan, 591 F.3d 1217, 1224–26 (9th Cir. 2010) (warden’s mistake rendered prisoner’s
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administrative remedies “effectively unavailable”); Ward v. Chavez, 678 F.3d 1042, 1044-45
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(9th Cir. 2012) (exhaustion excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir.
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2005) (plaintiff not required to proceed to third level where appeal granted at second level and
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no further relief was available); Marella v. Terhune, 568 F.3d 1024 (9th Cir. 2009) (excusing
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an inmate’s failure to exhaust because he did not have access to the necessary grievance forms
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to timely file his grievance).
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“A prisoner’s concession to nonexhaustion is a valid ground for dismissal. . . .”) Wyatt
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v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (overruled on other grounds by Albino, 747
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F.3d at 1168-69); see also Salas v. Tillman, 162 Fed.App’x. 918 (11th Cir. 2006) (sua sponte
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dismissal of prisoner’s civil rights claims for failure to exhaust was not abuse of discretion;
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prisoner did not dispute that he timely failed to pursue his administrative remedies, and a
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continuance would not permit exhaustion because any grievance would be untimely). In his
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request filed on August 20, 2018, Plaintiff conceded that he did not exhaust his administrate
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remedies for the claims in this case before filing suit. Therefore, it appears clear that Plaintiff
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filed suit prematurely, and in such instances, the case may be dismissed.
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III.
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CONCLUSION AND RECOMMENDATIONS
The court finds that Plaintiff has conceded to his failure to exhaust his administrative
remedies before filing suit, pursuant to the Prison Litigation Reform Act of 1995.
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Accordingly, IT IS HEREBY RECOMMENDED that:
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1.
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This case be DISMISSED, without prejudice, for Plaintiff’s failure to exhaust
his available administrative remedies before filing suit; and
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The Clerk be directed to CLOSE this case.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within fourteen
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(14) days after the date of service of these findings and recommendations, Plaintiff may file
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written objections with the court.
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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.
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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394
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(9th Cir. 1991)).
Such a document should be captioned “Objections to
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IT IS SO ORDERED.
Dated:
August 23, 2018
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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