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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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 GREGORY L. FLETCHER, Case No. 16-cv-04423-YGR (PR) Plaintiff, 5 ORDER TO SHOW CAUSE v. 6 7 DOCTOR ERQUIZA, Defendant. 8 9 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 11 United States District Court Northern District of California 10 reveals that Plaintiff has not exhausted California’s prison administrative process, however. 12 The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e to provide that 13 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 14 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 15 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion 16 is mandatory and no longer left to the discretion of the district court. Ross v. Blake, 136 S. Ct. 17 1850, 1856-58 (2016); Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v. Churner, 532 18 U.S. 731, 739 (2001)). “Prisoners must now exhaust all ‘available’ remedies, not just those that 19 meet federal standards.” Id. at 85. Even when the relief sought cannot be granted by the 20 administrative process, i.e., monetary damages, a prisoner must still exhaust administrative 21 remedies. Id. at 85-86 (citing Booth, 532 U.S. at 734). 22 The California Department of Corrections and Rehabilitation (“CDCR”) provides that 23 inmates and parolees “may appeal any policy, decision, action, condition, or omission by the 24 department or its staff that the inmate or parolee can demonstrate as having a material adverse 25 effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). “Three 26 levels of formal review are provided, and a prisoner exhausts the grievance process when he 27 completes the third level.” Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010). 28 1 Here, Plaintiff concedes he has not exhausted his administrative remedies. Dkt. 4 at 2.1 2 Furthermore, Plaintiff has not presented any extraordinary circumstances which might compel that 3 he be excused from complying with PLRA’s exhaustion requirement. Cf. Booth, 532 U.S. at 741 4 n.6 (courts should not read “futility or other exceptions” into section 1997e(a)). 5 A prisoner must exhaust his administrative remedies for constitutional claims prior to 6 asserting them in a civil rights complaint. 42 U.S.C. § 1997e(a); McKinney v. Carey, 311 F.3d 7 1198, 1199 (9th Cir. 2002). If a prisoner exhausts a claim after bringing it before the court, his 8 subsequent exhaustion cannot excuse his earlier failure to exhaust. Vaden v. Summerhill, 449 F.3d 9 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 11 United States District Court Northern District of California 10 the objectives of the statute to let him submit his complaint any earlier than that.”) When the 12 district court concludes that the prisoner has not exhausted administrative remedies on a claim, 13 “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. Terhune, 315 F.3d, 14 1108, 1120 (9th Cir. 2003) overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 1166 15 (9th Cir. 2014) (en banc). However, Plaintiff will be provided one final opportunity to show cause 16 within twenty-eight (28) days, why this case should not be dismissed without prejudice for failure 17 to exhaust. Specifically, to avoid dismissal, Plaintiff needs to provide proof that extraordinary 18 circumstances existed in order to excuse him from complying with PLRA’s exhaustion 19 requirement. See e.g., Ross, 136 S. Ct. at 1859-60 (identifying “three kinds of circumstances in 20 which an administrative remedy, although officially on the books, is not capable of use to obtain 21 relief.”) Failure to reply will result in dismissal without prejudice. 22 Plaintiff’s request to proceed in forma pauperis will be granted in a separate written Order. 23 IT IS SO ORDERED. 24 Dated: January 11, 2017 ______________________________________ YVONNE GONZALEZ ROGERS United States District Court Judge 25 26 27 1 28 Page number citations refer to those assigned by the Court’s electronic case management filing system and not those assigned by Plaintiff. 2

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