(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)

Download PDF
Case 1:21-cv-00202-AWI-JLT Document 17 Filed 07/19/21 Page 1 of 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JESSE MICHEL WYNN, 12 13 14 15 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. 16 17 Jesse Michel Wynn alleges the defendant-correctional officers subjected him to excessive 18 force. (Doc. 1.) In his complaint, Plaintiff indicates that he has not yet completed the 19 administrative grievance process and that his grievance concerning the subject incident “is being 20 reviewed.” (Id. at 2.) Therefore, on June 9, 2021, the Court issued an order to show cause, within 21 21 days, why this action should not be dismissed for failure to exhaust administrative remedies 22 prior to filing suit. (Doc. 16.) Although more than 21 days have passed, Plaintiff has failed to 23 respond to the order to show cause. 24 The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect 25 to prison conditions under . . . any other Federal law . . . by a prisoner confined in any jail, prison, 26 or other correctional facility until such administrative remedies as are available are exhausted.” 27 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and “unexhausted 28 claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation omitted). The Case 1:21-cv-00202-AWI-JLT Document 17 Filed 07/19/21 Page 2 of 2 1 exhaustion requirement applies to all inmate suits relating to prison life, Porter v. Nussle, 534 2 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 3 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). Inmates are required to 4 “complete the administrative review process in accordance with the applicable procedural rules, 5 including deadlines, as a precondition to bringing suit in federal court.” Woodford v. Ngo, 548 6 U.S. 81, 88, 93 (2006). Generally, failure to exhaust is an affirmative defense that the defendant 7 must plead and prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if 8 failure to exhaust is clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 9 (9th Cir. 2014). 10 It is clear on the face of his complaint that Plaintiff failed to exhaust prior to filing suit. 11 Accordingly, the Court RECOMMENDS that this action be DISMISSED without prejudice. 12 These Findings and Recommendations will be submitted to the United States District 13 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 14 service of these Findings and Recommendations, Plaintiff may file written objections with the 15 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 16 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 17 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 18 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 21 22 IT IS SO ORDERED. Dated: July 19, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?