1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEFF KILE, No. 1:24-cv-01177-SAB (PC) 12 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE 13 v. ORDER DIRECTING CLERK OF COURT TO 14 J. DOERER, RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 15 Defendant. FINDINGS AND RECOMMENDATIONS TO 16 DIMISS ACTION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST THE 17 ADMINISTRATIVE REMEDIES 18 (ECF Nos. 7, 8) 19 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action. Plaintiff 20 filed the complaint on November 18, 2024. (ECF No. 4.) 21 On December 9, 2024, the Court ordered Plaintiff to show cause why the action should 22 not be dismissed, without prejudice, for failure to exhaust the administrative remedies. (ECF No. 23 7.) Plaintiff filed a “request for judicial notice” on January 6, 2025, in response to the order to 24 show cause. (ECF No. 8.) 25 /// 26 /// 27 /// 28 1 I. 2 SCREENING REQUIREMENT 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] 7 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); 8 see also 28 U.S.C. § 1915A(b). 9 A complaint must contain “a short and plain statement of the claim showing that the pleader 10 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 11 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 12 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 13 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 14 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 15 2002). 16 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 17 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 18 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 19 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that 20 each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. 21 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted 22 unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” 23 falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 24 II. 25 SUMMARY OF ALLEGATIONS 26 On or about August 9 through October 9, 2024, a lockdown occurred at the United States 27 Penitentiary in Atwater. Plaintiff was confined to his cell for 24 hours a day. During this time, 28 Plaintiff did not have access to: (1) administrative grievance forms; (2) courts; (3) 1 communication; (4) mail; (5) medical treatment; (6) personal property; and (7) cleaning supplies. 2 III. 3 DISCUSSION 4 A. Exhaustion of Administrative Remedies 5 As stated in the Court’s December 9, 2024, order to show cause, on the form complaint, 6 Plaintiff checks the box “no” in response to the question whether there are any administrative 7 remedies available at his institution and states “See supporting Facts above.” (ECF No. 4 at 4.) 8 Plaintiff states that he “was Denied Access to Administrative Remedies and cut off from the 9 World for over 60 days.” (Id.) Within the complaint, Plaintiff further states that the “Unit Team . 10 . . were responsible to make Administrative Remedy Forms (to include Federal Tort Claim Act 11 forms) available to the Plaintiff[, and that he] had no way to approach the Unit Team members to 12 request administrative remedy forms.” (Id.) Plaintiff submits he requested informal resolution of 13 issues and administrative remedy forms but the unit team members in question “did not provide 14 any access to [the forms] during this time period”—when “USP Atwater was locked down from 15 on or about [August 9, 2024 to October 9, 2024].” (Id.) Although Plaintiff indicates that “[t]he 16 complete [and] utter denial of access [to] any form of recourse for 2 months makes this complaint 17 ripe for court intervention[,]” Plaintiff fails to state whether he exhausted his remedies between 18 the relevant dates of the lockdown incident to November 19, 2024, the date he signed his 19 complaint. 20 Under the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 21 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 22 confined in any jail, prison, or other correctional facility until such administrative remedies as are 23 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is a condition precedent to filing a 24 civil rights claim. Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also McKinney v. Carey, 311 25 F.3d 1198, 1200 (9th Cir. 2002) (“Congress could have written a statute making exhaustion a 26 precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to 27 suit.” (citations omitted)). The exhaustion requirement “applies to all inmate suits about prison 28 life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the nature of the relief sought by the 1 prisoner or the relief offered by the prison's administrative process is of no consequence. Booth v. 2 Churner, 532 U.S. 731, 741 (2001). And, because the PLRA’s text and intent requires “proper” 3 exhaustion, a prisoner does not satisfy the PLRA’s administrative grievance process if he files an 4 untimely or procedurally defective grievance or appeal. Woodford, 548 U.S. at 93. A prisoner 5 need not plead or prove exhaustion. Instead, it is an affirmative defense that must be proved by 6 defendant. Jones v. Bock, 549 U.S. 199, 211 (2007). A prison’s internal grievance process, not 7 the PLRA, determines whether the grievance satisfies the PLRA exhaustion requirement. Id. at 8 218. However, courts may dismiss a claim if failure to exhaust is clear on the face of the 9 complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 10 The California prison grievance system has two levels of review. Cal. Code Regs. tit. 15, 11 §§ 3483, 3485.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEFF KILE, No. 1:24-cv-01177-SAB (PC) 12 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE 13 v. ORDER DIRECTING CLERK OF COURT TO 14 J. DOERER, RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 15 Defendant. FINDINGS AND RECOMMENDATIONS TO 16 DIMISS ACTION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST THE 17 ADMINISTRATIVE REMEDIES 18 (ECF Nos. 7, 8) 19 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action. Plaintiff 20 filed the complaint on November 18, 2024. (ECF No. 4.) 21 On December 9, 2024, the Court ordered Plaintiff to show cause why the action should 22 not be dismissed, without prejudice, for failure to exhaust the administrative remedies. (ECF No. 23 7.) Plaintiff filed a “request for judicial notice” on January 6, 2025, in response to the order to 24 show cause. (ECF No. 8.) 25 /// 26 /// 27 /// 28 1 I. 2 SCREENING REQUIREMENT 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] 7 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); 8 see also 28 U.S.C. § 1915A(b). 9 A complaint must contain “a short and plain statement of the claim showing that the pleader 10 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 11 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 12 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 13 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 14 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 15 2002). 16 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 17 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 18 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 19 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that 20 each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. 21 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted 22 unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” 23 falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 24 II. 25 SUMMARY OF ALLEGATIONS 26 On or about August 9 through October 9, 2024, a lockdown occurred at the United States 27 Penitentiary in Atwater. Plaintiff was confined to his cell for 24 hours a day. During this time, 28 Plaintiff did not have access to: (1) administrative grievance forms; (2) courts; (3) 1 communication; (4) mail; (5) medical treatment; (6) personal property; and (7) cleaning supplies. 2 III. 3 DISCUSSION 4 A. Exhaustion of Administrative Remedies 5 As stated in the Court’s December 9, 2024, order to show cause, on the form complaint, 6 Plaintiff checks the box “no” in response to the question whether there are any administrative 7 remedies available at his institution and states “See supporting Facts above.” (ECF No. 4 at 4.) 8 Plaintiff states that he “was Denied Access to Administrative Remedies and cut off from the 9 World for over 60 days.” (Id.) Within the complaint, Plaintiff further states that the “Unit Team . 10 . . were responsible to make Administrative Remedy Forms (to include Federal Tort Claim Act 11 forms) available to the Plaintiff[, and that he] had no way to approach the Unit Team members to 12 request administrative remedy forms.” (Id.) Plaintiff submits he requested informal resolution of 13 issues and administrative remedy forms but the unit team members in question “did not provide 14 any access to [the forms] during this time period”—when “USP Atwater was locked down from 15 on or about [August 9, 2024 to October 9, 2024].” (Id.) Although Plaintiff indicates that “[t]he 16 complete [and] utter denial of access [to] any form of recourse for 2 months makes this complaint 17 ripe for court intervention[,]” Plaintiff fails to state whether he exhausted his remedies between 18 the relevant dates of the lockdown incident to November 19, 2024, the date he signed his 19 complaint. 20 Under the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 21 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 22 confined in any jail, prison, or other correctional facility until such administrative remedies as are 23 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is a condition precedent to filing a 24 civil rights claim. Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also McKinney v. Carey, 311 25 F.3d 1198, 1200 (9th Cir. 2002) (“Congress could have written a statute making exhaustion a 26 precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to 27 suit.” (citations omitted)). The exhaustion requirement “applies to all inmate suits about prison 28 life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the nature of the relief sought by the 1 prisoner or the relief offered by the prison's administrative process is of no consequence. Booth v. 2 Churner, 532 U.S. 731, 741 (2001). And, because the PLRA’s text and intent requires “proper” 3 exhaustion, a prisoner does not satisfy the PLRA’s administrative grievance process if he files an 4 untimely or procedurally defective grievance or appeal. Woodford, 548 U.S. at 93. A prisoner 5 need not plead or prove exhaustion. Instead, it is an affirmative defense that must be proved by 6 defendant. Jones v. Bock, 549 U.S. 199, 211 (2007). A prison’s internal grievance process, not 7 the PLRA, determines whether the grievance satisfies the PLRA exhaustion requirement. Id. at 8 218. However, courts may dismiss a claim if failure to exhaust is clear on the face of the 9 complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 10 The California prison grievance system has two levels of review. Cal. Code Regs. tit. 15, 11 §§ 3483, 3485. “Completion of the review process by the Institutional or Regional Office of 12 Grievances resulting in a decision of ‘identified as staff misconduct,’ ‘pending legal matter,’ or 13 ‘time expired’ in accordance with subsections (g)(8) through (g)(10) of [ ] section [3483] does 14 constitute exhaustion of all administrative remedies available to a claimant within the 15 department.” Cal. Code Regs. tit. 15, § 3483(l)(2). Additionally, “[c]ompletion of the review 16 process by the Office of Appeals resulting in a decision of ‘denied,’ ‘granted,’ ‘no jurisdiction,’ 17 ‘identified as staff misconduct,’ ‘pending legal matter,’ or ‘time expired’ in accordance with 18 subsections (g)(1) through (g)(3) and (g)(8) through (g)(10) of [ ] section 3485 constitutes 19 exhaustion of all administrative remedies available to a claimant within the department.” Cal. 20 Code Regs. tit. 15, § 3485(l)(1). 21 In general, failure to exhaust is an affirmative defense that the defendant must plead and 22 prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is 23 clear on the face of the complaint. See Albino, 747 F.3d at 1166. Here, it appears clear on the 24 face of his complaint that Plaintiff has failed to exhaust administrative remedies prior to filing 25 suit. Plaintiff contends he should be relieved of the requirement to exhaust administrative 26 remedies because, during the 60-day lockdown, he was unable to access grievance forms. 27 However, Plaintiff presents no allegations to demonstrate that this was anything more than a 28 temporary and routine unavailability. Indeed, Plaintiff has failed to show whether any efforts by 1 him to exhaust administrative remedies after the lockdown ended where thwarted. Accordingly, 2 it appears has not complied with the requirement to exhaust administrative remedies. See, e.g., 3 Talley v. Clark, 111 F.4th 255, 264 (3d Cir. 2024) (even if administrative remedies were 4 temporarily unavailable during suicide watch without access to writing materials, it did not 5 excuse inmate’s failure to request an extension once he was released and able to complete the 6 necessary forms.); Smith v. Hendrick, No. 1:21-cv-1704, 2024 WL 4244831, at *7 (M.D. Pa. 7 Sept. 29, 2024) (inmate purportedly denied access to grievance forms during the approximately 8 three-month period, but he did not request an extension of time to file a grievance once he was 9 removed from the RHU, which demonstrated failure to exhaust administrative remedies.); Roman 10 v. Knowles, No. 07cv1343-JLS (POR), 2011 WL 3741012, at *7 (S.D. Cal. June 20, 2011) 11 (“Plaintiff does not plead facts sufficient to establish an intentional and systematic obstruction to 12 administrative remedies that, on its own, would render those remedies unavailable, and excuse his 13 inability to exhaust them. Plaintiff’s pleadings themselves contain facts sufficient to establish that 14 these remedies were only temporarily unavailable and thus exhaustion should not be excused.”); 15 Dean v. Prison Health Servs., No. 10-14135, 2011 WL 1630114, at *8 (E.D. Mich. Mar. 28, 16 2011) (“The mere fact that forms were temporarily unavailable to Plaintiff is insufficient to 17 establish exhaustion”) (citing cases). 18 Thus, based on the face of the complaint, Plaintiff did not exhaust his administrative 19 remedies prior to filing this case. (ECF No. 1 at 3-4.) In his response to the order to show cause, 20 Plaintiff again merely states that “from Aug 9 to Oct 9 the Warden at USP Atwater locked down 21 the facility. During that time Defendants failed to provide administrative remedies, cut [him] off 22 from the word, failed to provide medical services, confiscated property & legal material without 23 due process and failed to provide sanitation supplies.” (ECF No. 8.) Because Plaintiff has not 24 exhausted the administrative remedies, the action should be dismissed, without prejudice. 25 Plaintiff is informed that a dismissal of this action, without prejudice, does not prevent him from 26 re-filing this action in this Court at a later date, which would be after he completed exhaustion of 27 his administrative remedies. 28 /// 1 IV. 2 ORDER AND RECOMMENDATIONS 3 Accordingly, the order to show cause issued on December 9, 2024, (ECF No. 7), is 4 | HEREBY DISCHARGED and the Clerk of the Court is DIRECTED to randomly assign a 5 | District Judge to this action. 6 Furthermore, it is HEREBY RECOMMENDED that this action be dismissed, without 7 | prejudice, based on Plaintiff's failure to exhaust administrative remedies prior to filing suit. 8 These Findings and Recommendations will be submitted to the United States District 9 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen 10 | (14) days after being served with these Findings and Recommendations, the parties may file 11 | written objections with the Court, limited to 15 pages in length, including exhibits. The 12 || document should be captioned “Objections to Magistrate Judge’s Findings and 13 | Recommendations.” The parties are advised that failure to file objections within the specified 14 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 15 | (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 IT IS SO ORDERED. DAM Le 1g | Dated: _ January 10, 2025 STANLEY A. BOONE 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28