1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 STEVEN DEON TURNER, JR., ) Case No.: 1:21-cv-00673-DAD-SAB (PC) ) 12 Plaintiff, ) ) ORDER TO SHOW CAUSE WHY ACTION 13 v. ) SHOULD NOT BE DISMISSED, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST THE 14 CALIFORNIA DEPARTMENT OF ) ADMINISTRATIVE REMEDIES CORRECTIONS AND REHABILITATION, ) 15 et al., ) (ECF No. 1) ) 16 ) Defendants. ) 17 )
18 Plaintiff Steven Deon Turner, Jr., is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Plaintiff filed the instant complaint on April 22, 2021, and the Court granted Plaintiff’s motion 21 to proceed in forma pauperis on July 6, 2021. 22 I. 23 SCREENING REQUIREMENT 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 26 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 27 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 28 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 1 U.S.C. § 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the pleader is 3 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 5 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 6 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 7 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 8 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 9 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 10 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 11 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 12 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 13 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 14 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 15 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 16 II. 17 EXHAUSTION OF ADMINISTRATIVE REMEDIES 18 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with respect 19 to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any 20 jail, prison, or other correctional facility until such administrative remedies as are available are 21 exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative 22 remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 23 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner 24 and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the 25 exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 26 (2002). 27 Prisoners are required to exhaust before bringing suit. Booth, 532 U.S. at 741. From the face 28 of Plaintiff’s Complaint, it is clear that Plaintiff filed suit prematurely and in such instances, the case 1 may be dismissed. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (where failure to 2 exhaust is clear from face of complaint, case is subject to dismissal for failure to state a claim under 3 Rule 12(b)(6)); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to 4 nonexhaustion is a valid ground for dismissal....”) (overruled on other grounds by Albino, 747 F.3d at 5 1168-69); see also Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to 6 state a claim under § 1915A ‘incorporates the familiar standard applied in the context of failure to 7 state a claim under Federal Rule of Civil Procedure 12(b)(6).’ ”) (quoting Wilhelm v. Rotman, 680 8 F.3d 1113, 1121 (9th Cir. 2012)). 9 There are currently two levels of review within the California prison administrative grievance 10 process. Cal. Code Regs. tit. 15, §§ 3482, 3483, 3486. Generally, “[c]ompletion of the review process 11 by the Office of Appeals constitutes exhaustion of all administrative remedies available to a claimant 12 within the Department.” Cal. Code Regs. tit. 15, § 3486. The Supreme Court has held that there are no 13 “special circumstances” exceptions to the exhaustion requirement. Ross v. Blake, 578 U.S. 1174, 136 14 S.Ct. 1850, 1856 (2016). However, the one significant qualifier is that “the remedies must indeed be 15 ‘available’ to the prisoner.” Id. As described by the Ross Court: 16 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently 17 unwilling to provide any relief to aggrieved inmates. See 532 U.S., at 736, 738, 121 S.Ct. 1819. . . . Next, an administrative scheme might be so opaque that it becomes, practically 18 speaking, incapable of use. . . . And finally, the same is true when prison administrators thwart 19 inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. . . . As all those courts have recognized, such interference with an inmate's 20 pursuit of relief renders the administrative process unavailable. And then, once again, § 1997e(a) poses no bar. 21
22 Id. at 1859-60. 23 It is clear from the face of Plaintiff’s complaint that he has not exhausted administrative remedies 24 pursuant to the Prison Litigation Reform Act, 41 U.S.C. § 1997 (e)(a), before filing this lawsuit.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 STEVEN DEON TURNER, JR., ) Case No.: 1:21-cv-00673-DAD-SAB (PC) ) 12 Plaintiff, ) ) ORDER TO SHOW CAUSE WHY ACTION 13 v. ) SHOULD NOT BE DISMISSED, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST THE 14 CALIFORNIA DEPARTMENT OF ) ADMINISTRATIVE REMEDIES CORRECTIONS AND REHABILITATION, ) 15 et al., ) (ECF No. 1) ) 16 ) Defendants. ) 17 )
18 Plaintiff Steven Deon Turner, Jr., is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Plaintiff filed the instant complaint on April 22, 2021, and the Court granted Plaintiff’s motion 21 to proceed in forma pauperis on July 6, 2021. 22 I. 23 SCREENING REQUIREMENT 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 26 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 27 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 28 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 1 U.S.C. § 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the pleader is 3 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 5 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 6 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 7 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 8 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 9 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 10 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 11 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 12 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 13 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 14 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 15 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 16 II. 17 EXHAUSTION OF ADMINISTRATIVE REMEDIES 18 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with respect 19 to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any 20 jail, prison, or other correctional facility until such administrative remedies as are available are 21 exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative 22 remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 23 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner 24 and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the 25 exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 26 (2002). 27 Prisoners are required to exhaust before bringing suit. Booth, 532 U.S. at 741. From the face 28 of Plaintiff’s Complaint, it is clear that Plaintiff filed suit prematurely and in such instances, the case 1 may be dismissed. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (where failure to 2 exhaust is clear from face of complaint, case is subject to dismissal for failure to state a claim under 3 Rule 12(b)(6)); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to 4 nonexhaustion is a valid ground for dismissal....”) (overruled on other grounds by Albino, 747 F.3d at 5 1168-69); see also Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to 6 state a claim under § 1915A ‘incorporates the familiar standard applied in the context of failure to 7 state a claim under Federal Rule of Civil Procedure 12(b)(6).’ ”) (quoting Wilhelm v. Rotman, 680 8 F.3d 1113, 1121 (9th Cir. 2012)). 9 There are currently two levels of review within the California prison administrative grievance 10 process. Cal. Code Regs. tit. 15, §§ 3482, 3483, 3486. Generally, “[c]ompletion of the review process 11 by the Office of Appeals constitutes exhaustion of all administrative remedies available to a claimant 12 within the Department.” Cal. Code Regs. tit. 15, § 3486. The Supreme Court has held that there are no 13 “special circumstances” exceptions to the exhaustion requirement. Ross v. Blake, 578 U.S. 1174, 136 14 S.Ct. 1850, 1856 (2016). However, the one significant qualifier is that “the remedies must indeed be 15 ‘available’ to the prisoner.” Id. As described by the Ross Court: 16 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently 17 unwilling to provide any relief to aggrieved inmates. See 532 U.S., at 736, 738, 121 S.Ct. 1819. . . . Next, an administrative scheme might be so opaque that it becomes, practically 18 speaking, incapable of use. . . . And finally, the same is true when prison administrators thwart 19 inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. . . . As all those courts have recognized, such interference with an inmate's 20 pursuit of relief renders the administrative process unavailable. And then, once again, § 1997e(a) poses no bar. 21
22 Id. at 1859-60. 23 It is clear from the face of Plaintiff’s complaint that he has not exhausted administrative remedies 24 pursuant to the Prison Litigation Reform Act, 41 U.S.C. § 1997 (e)(a), before filing this lawsuit. 25 Plaintiff states, “COVID-19 poses a high risk of serious illness or death[.] If there were any 26 administrative remedies available to Plaintiff, in two month time, Plaintiff may be seriously ill from 27 COVID-19 or worse. Thus, this pandemic creates a rare situation where the exhaustion of remedies rule 28 does not apply because denial of judicial review “immediately” would result in irreparable damage to 1 || Plaintiff life and health.” (Compl. at 4.) Plaintiff has failed to demonstrate that any of the □□□□□□□□□□□□ 2 set forth in Ross apply. Rather, he contends that it may take two months to exhaust □□□□□□□□□□□□□ 3 ||remedies, and he speculates that he could become seriously ill within that time period. However, tl 4 ||Supreme Court has not recognized a “lengthy-of-time or “futility” exception to the exhaustic 5 requirement. See Booth, 532 U.S. at 741 n.6. Thus, it is clear on the face of the complaint that Plainti 6 || failed to exhaust his administrative remedies before filing suit. Accordingly, Plaintiff shall be require 7 || to show cause why this case should not be dismissed, without prejudice, for failure to exhaust remedi 8 || prior to filing suit. 9 Il. 10 ORDER 11 Based on the foregoing, it is HEREBY ORDERED that: 12 1. Plaintiff shall show cause in writing within twenty-one (21) days of the date of servic 13 of this order as to why this case should not be dismissed for Plaintiff's failure to exhau 14 administrative remedies before filing suit; and 15 2. The failure to respond to this order will result in a recommendation to a district judge 16 dismiss this action without prejudice. 17 18 ||IT IS SO ORDERED. Al (ee 19 |! Dated: _ September 1, 2021 OF 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28