(PC) Justus v. Doerer, et al.

Filing 7

ORDER Directing Clerk of Court to Randomly Assign a District Judge to This Action; FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action for Failure to Exhaust the Administrative Remedies, signed by Magistrate Judge Stanley A. Boone on 3/11/2025. Objections to F&R due within FOURTEEN DAYS. (Deputy Clerk CRM)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT JUSTUS,

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Plaintiff,

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v.

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J. DOERER, et al.,

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No. 1:25-cv-00138-SAB (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN A DISTRICT JUDGE
TO THIS ACTION
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO EXHAUST THE
ADMINISTRATIVE REMEDIES

Defendants.

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(ECF No. 5)

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Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to Bivens
v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

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On December 18, 2024, the Court ordered Plaintiff to show cause why the action should

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not be dismissed, without prejudice, for failure to exhaust the administrative remedies. (ECF No.

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5.) Plaintiff has not filed a response and the time to do has expired.

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I.

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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[]

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B);

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see also 28 U.S.C. § 1915A(b).

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A complaint must contain “a short and plain statement of the claim showing that the pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d

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1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be

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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that

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each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted

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unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability”

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falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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II.

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SUMMARY OF ALLEGATIONS

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On or about August 9 through October 9, 2024, a lockdown occurred at the United States

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Penitentiary in Atwater. Plaintiff was confined to his cell for 24 hours a day. During this time,

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Plaintiff did not have access to: (1) administrative grievance forms; (2) courts; (3)

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communication; (4) mail; (5) medical treatment; (6) personal property; and (7) cleaning supplies.

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III.

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DISCUSSION

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A.

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On the form complaint, Plaintiff checks the box “no” in response to the question whether

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there are any administrative remedies available at his institution and states “See supporting Facts

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above.” (ECF No. 1 at 4.) Plaintiff states that he “was Denied Access to Administrative

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Remedies and cut off from the World for over 60 days.” (Id.) Within the complaint, Plaintiff

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further states that the “Unit Team . . . were responsible to make Administrative Remedy Forms

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(to include Federal Tort Claim Act forms) available to the Plaintiff[, and that he] had no way to

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approach the Unit Team members to request administrative remedy forms.” (Id.) Plaintiff

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submits he requested informal resolution of issues and administrative remedy forms but the unit

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team members in question “did not provide any access to [the forms] during this time period”—

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when “USP Atwater was locked down from on or about [August 9, 2024 to October 9, 2024].”

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(Id.) Although Plaintiff indicates that “[t]he complete [and] utter denial of access [to] any form of

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recourse for 2 months makes this complaint ripe for court intervention[,]” Plaintiff fails to state

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whether he exhausted his remedies between the relevant dates of the lockdown incident to

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December 4, 2024, the date he signed his complaint.

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Exhaustion of Administrative Remedies

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 v.

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Churner, 532 U.S. 731, 741 (2001). And, because the PLRA’s text and intent requires “proper”
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exhaustion, a prisoner does not satisfy the PLRA’s administrative grievance process if he files an

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untimely or procedurally defective grievance or appeal. Woodford, 548 U.S. at 93. A prisoner

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

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defendant. Jones v. Bock, 549 U.S. 199, 211 (2007). A prison’s internal grievance process, not

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the PLRA, determines whether the grievance satisfies the PLRA exhaustion requirement. Id. at

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218. However, courts may dismiss a claim if failure to exhaust is clear on the face of the

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

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The California prison grievance system has two levels of review. Cal. Code Regs. tit. 15,

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§§ 3483, 3485. “Completion of the review process by the Institutional or Regional Office of

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Grievances resulting in a decision of ‘identified as staff misconduct,’ ‘pending legal matter,’ or

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‘time expired’ in accordance with subsections (g)(8) through (g)(10) of [ ] section [3483] does

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constitute exhaustion of all administrative remedies available to a claimant within the

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department.” Cal. Code Regs. tit. 15, § 3483(l)(2). Additionally, “[c]ompletion of the review

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process by the Office of Appeals resulting in a decision of ‘denied,’ ‘granted,’ ‘no jurisdiction,’

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‘identified as staff misconduct,’ ‘pending legal matter,’ or ‘time expired’ in accordance with

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subsections (g)(1) through (g)(3) and (g)(8) through (g)(10) of [ ] section 3485 constitutes

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exhaustion of all administrative remedies available to a claimant within the department.” Cal.

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Code Regs. tit. 15, § 3485(l)(1).

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In general, failure to exhaust is an affirmative defense that the defendant must plead and

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prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is

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clear on the face of the complaint. See Albino, 747 F.3d at 1166. Here, it is clear on the face of

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his complaint that Plaintiff has failed to exhaust administrative remedies prior to filing suit.

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Plaintiff contends he should be relieved of the requirement to exhaust administrative remedies

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because, during the 60-day lockdown, he was unable to access grievance forms. However,

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Plaintiff presents no allegations to demonstrate that this was anything more than a temporary and

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routine unavailability. Indeed, Plaintiff has failed to show whether any efforts by him to exhaust

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administrative remedies after the lockdown ended were thwarted. Accordingly, Plaintiff has not

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complied with the requirement to exhaust administrative remedies. See, e.g., Talley v. Clark, 111
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F.4th 255, 264 (3d Cir. 2024) (even if administrative remedies were temporarily unavailable

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during suicide watch without access to writing materials, it did not excuse inmate’s failure to

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request an extension once he was released and able to complete the necessary forms.); Smith v.

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Hendrick, No. 1:21-cv-1704, 2024 WL 4244831, at *7 (M.D. Pa. Sept. 29, 2024) (inmate

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purportedly denied access to grievance forms during the approximately three-month period, but

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he did not request an extension of time to file a grievance once he was removed from the RHU,

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which demonstrated failure to exhaust administrative remedies.); Roman v. Knowles, No.

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07cv1343-JLS (POR), 2011 WL 3741012, at *7 (S.D. Cal. June 20, 2011) (“Plaintiff does not

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plead facts sufficient to establish an intentional and systematic obstruction to administrative

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remedies that, on its own, would render those remedies unavailable, and excuse his inability to

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exhaust them. Plaintiff’s pleadings themselves contain facts sufficient to establish that these

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remedies were only temporarily unavailable and thus exhaustion should not be excused.”); Dean

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v. Prison Health Servs., No. 10-14135, 2011 WL 1630114, at *8 (E.D. Mich. Mar. 28, 2011)

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(“The mere fact that forms were temporarily unavailable to Plaintiff is insufficient to establish

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exhaustion”) (citing cases).

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Thus, based on the face of the complaint, Plaintiff did not exhaust his administrative

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remedies prior to filing this case, and he has failed to respond to the Court’s order to show cause

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why the action should not be dismissed for failure to exhaust. Because Plaintiff has not exhausted

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the administrative remedies, the action should be dismissed, without prejudice. Plaintiff is

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informed that a dismissal of this action, without prejudice, does not prevent him from re-filing

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this action in this Court at a later date, which would be after he completed exhaustion of his

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administrative remedies.

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IV.

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ORDER AND RECOMMENDATIONS

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Accordingly, the order to show cause issued on December 1, 2024, (ECF No. 5), is

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HEREBY DISCHARGED and the Clerk of the Court is DIRECTED to randomly assign a

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District Judge to this action.

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Furthermore, it is HEREBY RECOMMENDED that this action be dismissed, without

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prejudice, based on Plaintiff’s failure to exhaust administrative remedies prior to filing suit.

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

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after being served with these Findings and Recommendations, the parties may file

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written objections with the Court, limited to 15 pages in length, including exhibits. The

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The parties are advised that failure to file objections within the specified

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time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39

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(9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

March 11, 2025
STANLEY A. BOONE
United States Magistrate Judge

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