(PC) Wynn v. Escarcega. et al.

Filing 17

FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to Exhaust Administrative Remedies re 1 Complaint signed by Magistrate Judge Jennifer L. Thurston on 7/19/2021. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

Case 1:21-cv-00202-AWI-JLT Document 17 Filed 07/19/21 Page 1 of 2
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSE MICHEL WYNN,

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Plaintiff,
v.
R. ESCARCEGA, et al.,

Case No. 1:21-cv-00202-AWI-JLT (PC)
FINDINGS AND RECOMMENDATIONS
TO DISMISS ACTION FOR FAILURE TO
EXHAUST ADMINISTRATIVE REMEDIES
14-DAY DEADLINE

Defendants.

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Jesse Michel Wynn alleges the defendant-correctional officers subjected him to excessive

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force. (Doc. 1.) In his complaint, Plaintiff indicates that he has not yet completed the

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administrative grievance process and that his grievance concerning the subject incident “is being

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reviewed.” (Id. at 2.) Therefore, on June 9, 2021, the Court issued an order to show cause, within

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21 days, why this action should not be dismissed for failure to exhaust administrative remedies

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prior to filing suit. (Doc. 16.) Although more than 21 days have passed, Plaintiff has failed to

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respond to the order to show cause.

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The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect

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to prison conditions under . . . any other Federal law . . . by a prisoner confined in any jail, prison,

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or other correctional facility until such administrative remedies as are available are exhausted.”

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42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and “unexhausted

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claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation omitted). The

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exhaustion requirement applies to all inmate suits relating to prison life, Porter v. Nussle, 534

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U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the

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administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). Inmates are required to

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“complete the administrative review process in accordance with the applicable procedural rules,

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including deadlines, as a precondition to bringing suit in federal court.” Woodford v. Ngo, 548

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U.S. 81, 88, 93 (2006). Generally, failure to exhaust is an affirmative defense that the defendant

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must plead and prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if

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failure to exhaust is clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166

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(9th Cir. 2014).

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It is clear on the face of his complaint that Plaintiff failed to exhaust prior to filing suit.

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Accordingly, the Court RECOMMENDS that this action be DISMISSED without prejudice.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of

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service of these Findings and Recommendations, Plaintiff may file written objections with the

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

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Recommendations.” Plaintiff’s failure to file objections within the specified time may result in

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waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing

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

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IT IS SO ORDERED.
Dated:

July 19, 2021

_ /s/ Jennifer L. Thurston
CHIEF UNITED STATES MAGISTRATE JUDGE

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