Meyers v. Downing et al

Filing 5

ORDER DIRECTING PLAINTIFF TO SHOW CAUSE REGARDING EXHAUSTION. Show Cause Response due by 5/29/2014. Signed by Judge Saundra Brown Armstrong on 5/1/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 5/1/2014)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 MIKA LEE MEYERS, 4 No. C 13-04230 SBA (PR) Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW CAUSE REGARDING EXHAUSTION vs. 5 6 SHERIFF MIKE DOWNING, et al., 7 Defendants. _____________________________________/ 8 INTRODUCTION 9 Plaintiff, who is currently housed at the Humboldt County Jail ("HCJ"), has filed a United States District Court For the Northern District of California 10 11 pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging constitutional violations that 12 occurred in 2013. He has also filed a motion for leave to proceed in forma pauperis ("IFP"), 13 which will be granted in a separate written Order. Venue is proper because the events giving rise to the claim are alleged to have 14 15 occurred at HCJ, which is located in this judicial district. See 28 U.S.C. § 1391(b). In his complaint, Plaintiff names the following Defendants: Humboldt County Sheriff 16 17 Michael Downing; Lieutenant Flint; Sergeant Lisa Yount; Correctional Officer Lewis; and 18 "other unknown [jail officials] at present time . . . ." Compl. at 2. Plaintiff seeks monetary 19 damages.1 DISCUSSION 20 21 22 I. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner 23 seeks redress from a governmental entity or officer or employee of a governmental entity. 24 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and 25 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may 26 1 Plaintiff also requests to be "released from punishment." Compl. at 3. However, such relief is not proper in a civil rights matter. Any claim by a prisoner attacking the validity or duration of his confinement must be brought under the habeas sections of Title 28 28 of the United States Code. Calderon v. Ashmus, 523 U.S. 740, 747 (1998); 27 1 be granted or seek monetary relief from a defendant who is immune from such relief. Id. 2 § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica 3 Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 4 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the color 7 of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 8 II. 9 Order to Show Cause Regarding Exhaustion Plaintiff has raised the following claims in his complaint, including: (1) an excessive United States District Court For the Northern District of California 10 force claim stemming from an incident involving Defendant Lewis on July 21, 2013; and 11 (2) a due process claim stemming from wrongful placement in "punishment housing" after 12 being disciplined for the July 21, 2013 incident. Compl. at 3. In the section of the complaint 13 entitled, "Exhaustion of Administrative Remedies," Plaintiff does not indicate that he 14 exhausted his administrative remedies to the highest level of review as to both claims in his 15 complaint. Thus, the Court directs Plaintiff to show cause why the aforementioned claims 16 should not be dismissed for failure to exhaust his administrative remedies prior to filing this 17 action and raising these claims. 18 The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 19 (1996) (PLRA) provides: "No action shall be brought with respect to prison conditions under 20 [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or 21 other correctional facility until such administrative remedies as are available are exhausted." 22 42 U.S.C. § 1997e(a). Exhaustion is mandatory and not left to the discretion of the district 23 court. Woodford v. Ngo, 548 U.S. 81, 84 (2006). Exhaustion is a prerequisite to all prisoner 24 lawsuits concerning prison life, whether such actions involve general conditions or particular 25 episodes, whether they allege excessive force or some other wrong, and even if they seek 26 relief not available in grievance proceedings, such as money damages. Porter v. Nussle, 534 27 U.S. 516, 524 (2002). The exhaustion requirement requires "proper exhaustion" of all 28 available administrative remedies. Ngo, 548 U.S. at 93. Section 1073 of Title 15 of the 2 1 California Code of Regulations provides county jail inmates with a right to "appeal and have 2 resolved grievances" relating to their confinement. 3 Because exhaustion under Section 1997e(a) is an affirmative defense, a complaint 4 may be dismissed for failure to exhaust only if failure to exhaust is obvious from the face of 5 the complaint and/or any attached exhibits. Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th 6 Cir. 2003). The Court may dismiss a complaint for failure to exhaust where the prisoner 7 "conce[des] to nonexhaustion" and "no exception to exhaustion applies." Id. at 1120. Here, 8 it is not clear from the face of the complaint whether Plaintiff exhausted his administrative 9 remedies as to the aforementioned claims. Accordingly, the Court directs Plaintiff to show United States District Court For the Northern District of California 10 cause as to why the aforementioned claims should not be dismissed for failure to exhaust his 11 administrative remedies prior to filing this action. Plaintiff shall file a response to the order 12 to show cause no later than twenty-eight (28) days from the date this Order is filed. The 13 Court notes if Plaintiff did not fully exhaust his administrative remedies as to the 14 aforementioned claims prior to filing this action, these claims will be dismissed without 15 prejudice. CONCLUSION 16 17 For the foregoing reasons, the Court orders as follows: 18 1. Plaintiff is directed to show cause why the claims in his complaint should not 19 be dismissed for failure to exhaust his administrative remedies prior to filing this action. 20 Plaintiff shall file a written response to the order to show cause no later than twenty-eight 21 (28) days of the date this Order is filed. Failure to comply with this Order within the 22 deadline provided will result in the dismissal of his complaint without prejudice. 23 2 It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the 24 Court informed of any change of address and must comply with the Court's orders in a timely 25 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute, 26 pursuant to Federal Rule of Civil Procedure 41(b). 27 28 3 1 3. Extensions of time are not favored, though reasonable extensions will be 2 granted. Any motion for an extension of time must be filed no later than fourteen (14) days 3 prior to the deadline sought to be extended. 4 5 IT IS SO ORDERED. DATED: 5/1/2014 SAUNDRA BROWN ARMSTRONG United States District Judge 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P:\PRO-SE\SBA\CR.13\Meyers4230.OSC(exh).frm 4

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