Anthony Mark Herrera, Jr. v. Kathleen Allison, et al.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY MARK HERRERA, JR., No. 1:25-cv-00055-SAB (PC) 12 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE 13 v. (ECF No. 9) 14 KATHLEEN ALLISON, et al.,

15 Defendants.

16 17 Plaintiff is proceeding pro se in this civil rights action, filed on December 26, 2024. 18 On January 22, 2025, the Court ordered Plaintiff to show cause why his application to 19 proceed in forma pauperis should not be denied and the matter not be summarily dismissed for 20 failure to exhaust the administrative remedies. (ECF No. 9.) 21 Plaintiff filed two separate responses on February 20, 2025, and March 17, 2025. (ECF 22 Nos. 11, 13.) Therein, Plaintiff states, in part, that the incident at issue in the complaint occurred 23 on February 15, 2021, and he has “made numerous attempts to exhaust all my remedies at the 24 administrative levels. I was not allow [sic] to pursue administrative exhausting [sic] at the 25 highest level. My 602/complaints was being rejected, or withheld from me and show pending 26 602, for years and everytime I ask a counselor for copies of all my 602 dated back from 2020 and 27 2021, and the reply I get back from the counselor is she can’t give me the copy because the 602 28 1 | have not been finalize.” (ECF No. 11 at 1-2.) 2 Liberally construing the allegations in Plaintiff's complaint and the allegations in his 3 || response to the order to show cause, the Court finds good cause to discharge the order to show 4 | cause. See Creamer v. California State Prison Delano, Case No. 1:23-cv-00139-CDB (PC), 2023 5 | WL 2024859, at *1 (E.D. Cal. Feb. 15, 2023) (“Liberally construing this pro se filing, although 6 | not expressly stated, the Court understands Plaintiff to contend his failure to exhaust 7 | administrative remedies prior to filing suit is due to interference by prison officials with his 8 | efforts to complete the exhaustion process, thus making the exhaustion of administrative remedies 9 | unavailable to Plaintiff”). However, the Court makes no finding as to whether Plaintiff has 10 || exhausted the administrative remedies or whether he is excused from doing so. See Creamer, 11 | 2023 WL 2024859, at *1; Kile v. Doerer, Case No. 1:24-cv-01177-KES-SAB (PC), 2025 WL 12 | 604992, at *1 (E.D. Cal. Feb. 25, 2025) (“[B]ecause exhaustion of the administrative remedies is 13 | an affirmative defense, the Court makes no ruling as to whether Plaintiff has, in fact, exhausted 14 || the administrative remedies.”). Thus, Plaintiff is informed that this ruling does not prevent any 15 | viable Defendant from raising the exhaustion issue in his or her pleadings at a later date should 16 | the case proceed following screening of the operative complaint. 17 Accordingly, it is HEREBY ORDERED that the Court’s order to show cause issued on 18 | January 22, 2025, (ECF No. 9), is DISCHARGED. The Court will grant Plaintiff's in forma 19 || pauperis application by way of separate order. 20 IT IS SO ORDERED. DAA Le 22 | Dated: _October 8, 2025 _ eS STANLEY A. BOONE 23 United States Magistrate Judge 24 25 26 27 28