(PC) McDonald v. Phatal

Filing 12

ORDER directing Clerk of Court to randomly assign a Fresno District Judge to this action. FINDINGS and RECOMMENDATIONS recommending dismissal of action without prejudice, for failure to exhaust the administrative remedies #9 , #10 signed by Magistrate Judge Stanley A. Boone on 9/10/2020. Objections to F & R's due within 30-Days. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

BILLY JOE McDONALD,

12

Plaintiff,

13
14

v.
DR. PHATAL,

15

Defendant.

16
17
18
19

)
)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:20-cv-01003-SAB (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN A FRESNO DISTRICT
JUDGE TO THIS ACTION
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION,
WITHOUT PREJUDICE, FOR FAILURE TO
EXHAUST THE ADMINISTRATIVE REMEDIES
(ECF Nos. 9, 10)

Plaintiff Billy Joe McDonald is proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.

20

On August 10, 2020, the Court issued an order for Plaintiff to show cause why the action

21

should not be dismissed, without prejudice, for failure to exhaust the administrative remedies. (ECF

22

No. 9.)

23

On September 8, 2020, Plaintiff filed a response to the order to show cause. (ECF No. 10.)

24

Plaintiff’s response to the order to show cause does not address the issue of whether he has exhausted

25

the administrative remedies, but rather argues the merits of his case and presents several medical

26

documents. (Id.)

27

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

28

respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined
1

1

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

2

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

3

remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d

4

1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner

5

and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and

6

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

7

532 (2002).
The purposes of the PLRA are to allow a correctional institution to address complaints about

8
9

the programs administered before being subjected to suit, to reduce the litigation to the extent that

10

complaints are satisfactorily resolved, and to improve the litigation that does occur by leading to

11

preparation of a useful record. Jones v. Bock, 549 U.S. at 219; Woodford v. Ngo, 548 U.S. 81, 89

12

(2006). In Booth, the Supreme Court discussed that even in cases where a prisoner-plaintiff only

13

seeks relief which an administrative process cannot grant, sometimes being heard through the

14

administrative process can bring about changes to policies and practices, or “mollify passions even

15

when nothing ends up in the pocket,” filtering out some claims and fostering better-prepared litigation

16

if a dispute ends up in court. Booth v. Churner, 532 U.S. at 737.
If from the face of Plaintiff’s Complaint, it appears clear that Plaintiff filed suit prematurely

17
18

and in such instances, the case may be dismissed. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014)

19

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

20

failure to state a claim under Rule 12(b)(6)); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003)

21

(“A prisoner’s concession to nonexhaustion is a valid ground for dismissal....”) (overruled on other

22

grounds by Albino, 747 F.3d at 1168-69); see also Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir.

23

2014) (“Dismissal for failure to state a claim under § 1915A ‘incorporates the familiar standard

24

applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).’ ”)

25

(quoting Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)).

26

///

27

///

28

///
2

Because Plaintiff has not addressed the issue of whether he exhausted the administrative

1
2

remedies, the Court defaults to the face of the complaint which affirmatively demonstrates that

3

Plaintiff has not exhausted through the final level of review. (Compl. at 2; see also ECF No. 9 at 3.)

4

Accordingly, dismissal of the action, without prejudice, is warranted. Plaintiff is advised that the

5

dismissal, without prejudice, means that he can refile the action after he has exhausted the available

6

administrative remedies.
Based on the foregoing, it is HEREBY ORDERED that the Clerk of Court randomly assign a

7
8

Fresno District Judge to this action.
Further, it is HEREBY RECOMMENDED that this action be dismissed, without prejudice, for

9
10

failure to exhaust the administrative remedies.

11

This Findings and Recommendation will be submitted to the United States District Judge

12

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after

13

being served with this Findings and Recommendation, Plaintiff may file written objections with the

14

Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

15

Recommendation.” Plaintiff is advised that failure to file objections within the specified time may

16

result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

17

(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

18
19

IT IS SO ORDERED.

20

Dated:

21

September 10, 2020
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
3