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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MIKA LEE MEYERS,

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No. C 13-04230 SBA (PR)

Plaintiff,

ORDER DIRECTING PLAINTIFF
TO SHOW CAUSE REGARDING
EXHAUSTION

vs.

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SHERIFF MIKE DOWNING, et al.,

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Defendants.
_____________________________________/

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INTRODUCTION

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Plaintiff, who is currently housed at the Humboldt County Jail ("HCJ"), has filed a

United States District Court
For the Northern District of California

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pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging constitutional violations that

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occurred in 2013. He has also filed a motion for leave to proceed in forma pauperis ("IFP"),

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which will be granted in a separate written Order.
Venue is proper because the events giving rise to the claim are alleged to have

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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

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Michael Downing; Lieutenant Flint; Sergeant Lisa Yount; Correctional Officer Lewis; and

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"other unknown [jail officials] at present time . . . ." Compl. at 2. Plaintiff seeks monetary

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damages.1
DISCUSSION

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I.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity.

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28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and

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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may

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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
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be granted or seek monetary relief from a defendant who is immune from such relief. Id.

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§ 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica

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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

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the color

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of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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II.

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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

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force claim stemming from an incident involving Defendant Lewis on July 21, 2013; and

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(2) a due process claim stemming from wrongful placement in "punishment housing" after

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being disciplined for the July 21, 2013 incident. Compl. at 3. In the section of the complaint

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entitled, "Exhaustion of Administrative Remedies," Plaintiff does not indicate that he

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exhausted his administrative remedies to the highest level of review as to both claims in his

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complaint. Thus, the Court directs Plaintiff to show cause why the aforementioned claims

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should not be dismissed for failure to exhaust his administrative remedies prior to filing this

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action and raising these claims.

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The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321

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(1996) (PLRA) provides: "No action shall be brought with respect to prison conditions under

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[42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or

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other correctional facility until such administrative remedies as are available are exhausted."

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42 U.S.C. § 1997e(a). Exhaustion is mandatory and not left to the discretion of the district

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court. Woodford v. Ngo, 548 U.S. 81, 84 (2006). Exhaustion is a prerequisite to all prisoner

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lawsuits concerning prison life, whether such actions involve general conditions or particular

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episodes, whether they allege excessive force or some other wrong, and even if they seek

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relief not available in grievance proceedings, such as money damages. Porter v. Nussle, 534

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U.S. 516, 524 (2002). The exhaustion requirement requires "proper exhaustion" of all

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available administrative remedies. Ngo, 548 U.S. at 93. Section 1073 of Title 15 of the
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California Code of Regulations provides county jail inmates with a right to "appeal and have

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resolved grievances" relating to their confinement.

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Because exhaustion under Section 1997e(a) is an affirmative defense, a complaint

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may be dismissed for failure to exhaust only if failure to exhaust is obvious from the face of

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the complaint and/or any attached exhibits. Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th

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Cir. 2003). The Court may dismiss a complaint for failure to exhaust where the prisoner

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"conce[des] to nonexhaustion" and "no exception to exhaustion applies." Id. at 1120. Here,

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it is not clear from the face of the complaint whether Plaintiff exhausted his administrative

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remedies as to the aforementioned claims. Accordingly, the Court directs Plaintiff to show

United States District Court
For the Northern District of California

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cause as to why the aforementioned claims should not be dismissed for failure to exhaust his

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administrative remedies prior to filing this action. Plaintiff shall file a response to the order

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to show cause no later than twenty-eight (28) days from the date this Order is filed. The

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Court notes if Plaintiff did not fully exhaust his administrative remedies as to the

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aforementioned claims prior to filing this action, these claims will be dismissed without

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prejudice.
CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

Plaintiff is directed to show cause why the claims in his complaint should not

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be dismissed for failure to exhaust his administrative remedies prior to filing this action.

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Plaintiff shall file a written response to the order to show cause no later than twenty-eight

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(28) days of the date this Order is filed. Failure to comply with this Order within the

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deadline provided will result in the dismissal of his complaint without prejudice.

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It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the

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Court informed of any change of address and must comply with the Court's orders in a timely

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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute,

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pursuant to Federal Rule of Civil Procedure 41(b).

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3.

Extensions of time are not favored, though reasonable extensions will be

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granted. Any motion for an extension of time must be filed no later than fourteen (14) days

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prior to the deadline sought to be extended.

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IT IS SO ORDERED.
DATED:

5/1/2014

SAUNDRA BROWN ARMSTRONG
United States District Judge

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United States District Court
For the Northern District of California

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P:\PRO-SE\SBA\CR.13\Meyers4230.OSC(exh).frm

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