(PC)Valdez v. California Department of Corrections & Rehabilitation et al

Filing 19

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 02/08/2024. Show Cause Response due by 3/15/2024.(Maldonado, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JORGE LUIS VALDEZ JR.,

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Plaintiff,
v.

Case No. 1:23-cv-01729-HBK (PC)
ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED FOR
FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES

CDCR, et al.,
MARCH 15, 2024 DEADLINE
Defendants.

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Jorge Luis Valdez Jr. is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action. (Doc. Nos. 1, 12). Plaintiff acknowledges on the face of his Complaint that he

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has not exhausted his administrative remedies. (Doc. No. 1 at 3). Specifically, under the section

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of the form Complaint entitled “Exhaustion of Administrative Remedies” Plaintiff answers the

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question “Is the [grievance] process completed?” by stating “Yes and No” and indicates that two

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of the grievances concerning the incidents giving rise to the Complaint are still “pending.” (Id.).

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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 his administrative remedies

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as to his constitutional claims prior to filing this case. While a “mixed complaint” that contains

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exhausted and unexhausted claims need not be dismissed in its entirety based on failure to

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exhaust administrative remedies, “when a plaintiff’s ‘mixed’ complaint includes exhausted and

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unexhausted claims that are closely related and difficult to untangle, dismissal of the defective

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complaint with leave to amend to allege only fully exhausted claims, is the proper approach.”

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Lira v. Herrera, 427 F.3d 1164, 1176 (9th Cir. 2005). Here, Plaintiff’s claims appear to be

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closely related and are difficult to untangle. Plaintiff does not specify which grievances pertain to

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which incidents but notes that two of them—one of which was exhausted, and one unexhausted—

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“concern[ ] similar issues.” (Doc. No. 1 at 3).

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Consequently, before screening the Complaint, Plaintiff shall show cause in writing why

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his claims should not be dismissed for failure to exhaust his administrative remedies. In other

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words, Plaintiff is required to first fully and completely all steps of the administrative process

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available at his correctional institution before he may commence an action in federal court.

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Plaintiff is warned that if he commenced this action before exhausting his administrative

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remedies, a dismissal of his Complaint on this basis would count as a strike under 1915(g). El2

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Shaddai v. Zamora, 833 F.3d 1036, 1043–44 (9th Cir. 2016).1 Alternatively, to avoid a strike,

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Plaintiff may file a notice to voluntarily dismiss this claim without prejudice under Fed. R. Civ. P.

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41. Plaintiff may then refile a new complaint in a new action after he fully exhausts his

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administrative remedies. Failure to respond to this Order will result in the recommendation that

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this action be dismissed for failure to exhaust and/or failure to comply with a court order.

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Accordingly, it is ORDERED:

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1. No later than March 15, 2024, Plaintiff shall deliver to correctional officials for

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mailing his response to the order and show cause why this action should not be dismissed for his

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failure to exhaust his administrative remedies before filing suit. Alternatively, by this same date,

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Plaintiff deliver a “notice of voluntarily dismissal without prejudice under Fed. R. Civ. P. 41” to

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avoid a strike.
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 Plaintiff’s failure to exhaust his administrative remedies prior to

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initiating this action and/or failure to comply with a court order.

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Dated:

February 8, 2024
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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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).

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