(PC)Smith v. CDCR-CCWF Medical Staff

Filing 8

ORDER to SHOW CAUSE why action should not be dismissed for failure to exhaust administrative remedies signed by Magistrate Judge Helena M. Barch-Kuchta on 8/2/2022. Show Cause Response due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TASIA SMITH,

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Case No. 1:22-cv-00809-HBK (PC)
Plaintiff,

v.

ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED FOR
FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES

CDCR-CCWF MEDICAL STAFF,
FOURTEEN-DAY DEADLINE
Defendant.

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Tasia Smith is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action. (Doc. Nos. 1, 2). Plaintiff acknowledges on the face of her Complaint that she has not

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exhausted her administrative remedies. (Doc. No. 1 at 2). Indeed, Plaintiff admits she is “still

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waiting to here [sic] back from Chief of Appeals.” (Doc. No. 1 at 2)

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Under 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 are

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available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is a condition precedent to filing a

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civil rights claim. Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also McKinney v. Carey, 311

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F.3d 1198, 1200 (9th Cir. 2002) (“Congress could have written a statute making exhaustion a

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precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to

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suit.” (citations omitted)). The exhaustion requirement “applies to all inmate suits about prison

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life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the nature of the relief sought by the

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prisoner or the relief offered by the prison’s administrative process is of no consequence. Booth

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v. Churner, 532 U.S. 731, 741 (2001). And, because the PLRA’s text and intent requires

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“proper” exhaustion, a prisoner does not satisfy the PLRA’s administrative grievance process if

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he files an untimely or procedurally defective grievance or appeal. Woodford, 548 U.S. at 93. A

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prisoner need not plead or prove exhaustion. Instead, it is an affirmative defense that must be

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proved by defendant. Jones v. Bock, 549 U.S. 199, 211 (2007). A prison’s internal grievance

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process, not the PLRA, determines whether the grievance satisfies the PLRA exhaustion

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requirement. Id. at 218. However, courts may dismiss a claim if failure to exhaust is clear on the

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face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014).

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Based on the face of the Complaint, Plaintiff did not exhaust her administrative remedies

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prior to filing this case. Accordingly, within fourteen days of the date of service of this Order,

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Plaintiff shall show cause in writing why this action should not be dismissed for failure to exhaust

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her administrative remedies. Plaintiff is warned that if she commenced this action before

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exhausting her administrative remedies, a dismissal on this basis counts as a strike under 1915(g).

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El-Shaddai v. Zamora, 833 F.3d 1036, 1043–44 (9th Cir. 2016).1 Alternatively, Plaintiff may file

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a notice of voluntarily dismissal under Fed. R. Civ. P. 41 to avoid a strike and may refile a

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complaint after she has fully exhausted the administrative remedies. Failure to respond to this

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Order will result in the recommendation that this action be dismissed.

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Accordingly, it is ORDERED:

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1. Within fourteen (14) days of service of this order, Plaintiff shall show cause why

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this action should not be dismissed for her failure to exhaust her administrative remedies before

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filing suit or may file a notice of voluntarily dismissal under Fed. R. Civ. P. 41 to avoid a strike.

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Under § 1915(g), prisoners who have brought unsuccessful suits may be barred from bringing a civil
action and paying the fee on a payment plan once they have had on prior occasions three or more cases
dismissed as frivolous, malicious, or for failure to state a claim. Lomax v. Ortiz-Marquez, 140 S. Ct. 1721,
1723 (2020); see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 2007). Regardless of whether
the dismissal was with or without prejudice, a dismissal for failure to state a claim counts as a strike under
§ 1915(g). Lomax, 140 S. Ct. at 1727.

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2. Plaintiff’s failure to timely to respond to this order will result in the recommendation

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that this action be dismissed for failure to comply with a court order or prosecute this action.

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Dated:

August 2, 2022
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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