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