Fletcher v. Erquiza

Filing 7

ORDER TO SHOW CAUSE Show Cause Response due by 2/8/2017. Signed by Judge Yvonne Gonzalez Rogers on 1/11/2017. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 1/11/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GREGORY L. FLETCHER,

Case No. 16-cv-04423-YGR (PR)

Plaintiff,
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ORDER TO SHOW CAUSE

v.
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DOCTOR ERQUIZA,
Defendant.

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Plaintiff, a state prisoner, has filed a pro se complaint under 42 U.S.C. § 1983. He also
seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915. A review of the complaint

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United States District Court
Northern District of California

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reveals that Plaintiff has not exhausted California’s prison administrative process, however.

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The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e to provide that

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“[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any

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other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

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such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion

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is mandatory and no longer left to the discretion of the district court. Ross v. Blake, 136 S. Ct.

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1850, 1856-58 (2016); Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v. Churner, 532

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U.S. 731, 739 (2001)). “Prisoners must now exhaust all ‘available’ remedies, not just those that

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meet federal standards.” Id. at 85. Even when the relief sought cannot be granted by the

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administrative process, i.e., monetary damages, a prisoner must still exhaust administrative

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remedies. Id. at 85-86 (citing Booth, 532 U.S. at 734).

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The California Department of Corrections and Rehabilitation (“CDCR”) provides that

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inmates and parolees “may appeal any policy, decision, action, condition, or omission by the

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department or its staff that the inmate or parolee can demonstrate as having a material adverse

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effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). “Three

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levels of formal review are provided, and a prisoner exhausts the grievance process when he

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completes the third level.” Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010).

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Here, Plaintiff concedes he has not exhausted his administrative remedies. Dkt. 4 at 2.1

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Furthermore, Plaintiff has not presented any extraordinary circumstances which might compel that

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he be excused from complying with PLRA’s exhaustion requirement. Cf. Booth, 532 U.S. at 741

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n.6 (courts should not read “futility or other exceptions” into section 1997e(a)).

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A prisoner must exhaust his administrative remedies for constitutional claims prior to

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asserting them in a civil rights complaint. 42 U.S.C. § 1997e(a); McKinney v. Carey, 311 F.3d

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1198, 1199 (9th Cir. 2002). If a prisoner exhausts a claim after bringing it before the court, his

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subsequent exhaustion cannot excuse his earlier failure to exhaust. Vaden v. Summerhill, 449 F.3d

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1047, 1051 (9th Cir. 2006) (“[A prisoner] may initiate litigation in federal court only after the
administrative process ends and leaves his grievances unredressed. It would be inconsistent with

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United States District Court
Northern District of California

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the objectives of the statute to let him submit his complaint any earlier than that.”) When the

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district court concludes that the prisoner has not exhausted administrative remedies on a claim,

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“the proper remedy is dismissal of the claim without prejudice.” Wyatt v. Terhune, 315 F.3d,

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1108, 1120 (9th Cir. 2003) overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 1166

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(9th Cir. 2014) (en banc). However, Plaintiff will be provided one final opportunity to show cause

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within twenty-eight (28) days, why this case should not be dismissed without prejudice for failure

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to exhaust. Specifically, to avoid dismissal, Plaintiff needs to provide proof that extraordinary

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circumstances existed in order to excuse him from complying with PLRA’s exhaustion

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requirement. See e.g., Ross, 136 S. Ct. at 1859-60 (identifying “three kinds of circumstances in

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which an administrative remedy, although officially on the books, is not capable of use to obtain

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relief.”) Failure to reply will result in dismissal without prejudice.

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Plaintiff’s request to proceed in forma pauperis will be granted in a separate written Order.

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IT IS SO ORDERED.

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Dated: January 11, 2017
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YVONNE GONZALEZ ROGERS
United States District Court Judge

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Page number citations refer to those assigned by the Court’s electronic case management
filing system and not those assigned by Plaintiff.
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