Pacheco v. Sigala et al

Filing 7

ORDER TO SHOW CAUSE by Magistrate Judge Kevin R. Sweazea. (cbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

PHILIP PACHECO,
Plaintiff,
v.

No. 2:16-cv-1298 RJ/KRS

JOSHUA SIGALA,
ERNIE HOLGUIN, and
KATHLEEN HODGES,
Defendant.
MEMORANDUM OPINION AND ORDER TO SHOW CAUSE
Before the Court is Plaintiff’s civil rights complaint (Doc. 1). Plaintiff is incarcerated at
the Southern New Mexico Correctional Facility (“SNMCF”). He appears pro se and is proceeding
in forma pauperis. Plaintiff alleges that on October 28, 2016, Officers Sigala and Holguin
searched his cell for contraband [Doc. 1, p. 3]. The officers found a shank, which Plaintiff asserts
was planted. Id. Plaintiff was placed on “23 hour lockdown” and charged with possession of
dangerous contraband. Id. In his complaint, Plaintiff asserts claims for perjury and conspiracy in
violation of 42 U.S.C. § 1983 and the Eighth and Fourteenth Amendments [Doc. 1, p. 2]. He also
claims prison officials deprived him of certain constitutional rights when they refused to provide
employment, a bible, boxer shorts, socks, shoes, and other items for 20 days after the incident
occurred [Doc. 1, p. 4].
The complaint was filed 30 days after the incident took place, and apparently before
Plaintiff submitted an internal grievance. Inmates are required to exhaust administrative remedies
before bringing a civil rights claim, and suits filed before the exhaustion requirement is met must be
dismissed. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007) (“[E]xhaustion is
mandatory under the [Prison Litigation Reform Act] “PLRA” and ... unexhausted claims cannot be

brought in court.”). The “failure to exhaust … is an affirmative defense” and need not be
examined in every case as part of the screening process under the PLRA. Reedy v. Werholtz, 660
F.3d 1270, 1276 (10th Cir. 2011).

However, where “it is clear on the face of [Plaintiff’s]

complaint that he ha[s] not exhausted his administrative remedies, … the district court properly
may raise the exhaustion question sua sponte ... and seek additional information from [Plaintiff].”
Freeman v. Watkins, 479 F.3d 1257, 1260 (10th Cir. 2007).
The complaint explicitly states Plaintiff has not sought any administrative relief in
connection with the incidents described above [Doc. 1, p. 4]. Specifically, section D requires
Plaintiff to describe what steps he took to seek “informal or formal relief from the appropriate
administrative officials” or “exhaust[] available administrative remedies.” Id. In response to
both questions, Plaintiff wrote “none.” Id. The Court will therefore require Plaintiff to show
cause why his case should not be dismissed for failing to exhaust administrative remedies. If
Plaintiff fails to demonstrate that he completed SNMCF’s internal grievance procedure or
otherwise exhausted his administrative remedies prior to filing suit, the case may be dismissed
without further notice.
IT IS THEREFORE ORDERED that, within thirty (30) days from entry of this Order,
Plaintiff must file a response showing cause, if any, why his civil rights case should be not
dismissed for failure to exhaust administrative remedies.

____________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

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