Madison v. Chappell

Filing 10

ORDER TO SHOW CAUSE REGARDING EXHAUSTION Show Cause Response due by 4/7/2014.. Signed by Judge Lucy H. Koh on 3/21/14. (Attachments: # 1 Certificate/Proof of Service)(mpbS, COURT STAFF) (Filed on 3/24/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RICKEY R. MADISON,

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Plaintiff,
v.
KEVIN CHAPPELL,
Defendant.

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No. C 13-4681 LHK (PR)
ORDER TO SHOW CAUSE
REGARDING EXHAUSTION

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Plaintiff, proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983,

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alleging that while housed in San Quentin State Prison, prison officials were deliberately

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indifferent to plaintiff’s serious medical needs. For the reasons explained below, the court issues

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an order to plaintiff to show cause why the case should not be dismissed for failure to exhaust his

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administrative remedies prior to filing this action.

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DISCUSSION
The Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (1996)

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(“PLRA”) provides: “No action shall be brought with respect to prison conditions under [42

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

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correctional facility until such administrative remedies as are available are exhausted.” 42

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

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Woodford v. Ngo, 548 U.S. 81, 84 (2006). Exhaustion is a prerequisite to all prisoner lawsuits
Order to Show Cause Regarding Exhaustion
P:\PRO-SE\LHK\CR.13\Madison681oscexh.wpd

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

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whether they allege excessive force or some other wrong, and even if they seek relief not

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available in grievance proceedings, such as money damages. Porter v. Nussle, 534 U.S. 516,

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524 (2002). The exhaustion requirement requires “proper exhaustion” of all available

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administrative remedies. Ngo, 548 U.S. at 93.

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

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

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

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2003). The court may dismiss a complaint for failure to exhaust where the prisoner “conce[des]

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to nonexhaustion” and “no exception to exhaustion applies.” Id. at 1120. Here, it is obvious

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from the face of the complaint that plaintiff did not exhaust his administrative remedies and no

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exception to exhaustion is alleged or apparent in the complaint.

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In plaintiff’s complaint, he concedes that he did not present his claims for review through

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the prison’s grievance procedure. Rather, he claims that waiting to go through the “regular

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appeal process” could cause serious and irreparable harm. (Compl. at 1-2.) Plaintiff concedes

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that he did not pursue administrative relief at any level. (Id. at 1.)

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Accordingly, the court issues an order to plaintiff to show cause as to why this case

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

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action. Plaintiff shall file a response to the order to show cause within fourteen days from the

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date this order is filed. The court notes if plaintiff has not fully exhausted his administrative

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remedies prior to filing this action, the complaint will be dismissed without prejudice.

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CONCLUSION
Plaintiff is ordered to show cause why this case should not be dismissed for failure to

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exhaust his administrative remedies prior to filing this action. Plaintiff shall file a written

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response to the order to show cause within fourteen days of the date this order is filed. Failure

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to comply with this order within the deadline provided will result in the dismissal of this

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

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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the
Order to Show Cause Regarding Exhaustion
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court informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address.” He must comply with the court’s orders in a timely fashion or ask for an

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extension of time to do so.

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IT IS SO ORDERED.
DATED:

3/21/14
LUCY H. KOH
United States District Judge

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Order to Show Cause Regarding Exhaustion
P:\PRO-SE\LHK\CR.13\Madison681oscexh.wpd

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