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, ) ) FINDINGS AND RECOMMENDATION 13 v. ) RECOMMENDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO 14 CALIFORNIA DEPARTMENT OF ) EXHAUST THE ADMINISTRATIVE REMEDIES CORRECTIONS AND REHABILITATION, ) 15 et al., ) (ECF No. 19) ) 16 ) Defendants. ) 17 )
18 Plaintiff Steven Deon Turner, Jr., is proceeding pro se in this civil rights action pursuant to 42 19 U.S.C. § 1983. 20 Plaintiff filed the instant action on April 22, 2021. 21 On September 1, 2021, the Court ordered Plaintiff to show cause why the action should not be 22 dismissed, without prejudice, for failure to exhaust the administrative remedies. (ECF No. 19.) 23 Plaintiff filed a response on September 17, 2021. (ECF No. 20.) In his response, Plaintiff concedes 24 that “it is in my best interest to request that this case be dismissed.” (Id. at 1.) 25 I. 26 SCREENING REQUIREMENT 27 The Court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 1 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 2 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 3 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 4 U.S.C. § 1915A(b). 5 A complaint must contain “a short and plain statement of the claim showing that the pleader is 6 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 7 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 8 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 9 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 10 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 11 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 12 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 13 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 14 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 15 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 16 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 17 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 18 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 19 II. 20 EXHAUSTION OF ADMINISTRATIVE REMEDIES 21 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with respect 22 to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any 23 jail, prison, or other correctional facility until such administrative remedies as are available are 24 exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative 25 remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 26 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner 27 and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the 28 exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 1 (2002). 2 Prisoners are required to exhaust before bringing suit. Booth, 532 U.S. at 741. From the face 3 of Plaintiff’s Complaint, it is clear that Plaintiff filed suit prematurely and in such instances, the case 4 may be dismissed. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (where failure to 5 exhaust is clear from face of complaint, case is subject to dismissal for failure to state a claim under 6 Rule 12(b)(6)); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to 7 nonexhaustion is a valid ground for dismissal....”) (overruled on other grounds by Albino, 747 F.3d at 8 1168-69); see also Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to 9 state a claim under § 1915A ‘incorporates the familiar standard applied in the context of failure to 10 state a claim under Federal Rule of Civil Procedure 12(b)(6).’ ”) (quoting Wilhelm v. Rotman, 680 11 F.3d 1113, 1121 (9th Cir. 2012)). 12 There are currently two levels of review within the California prison administrative grievance 13 process. Cal. Code Regs. tit. 15, §§ 3482, 3483, 3486. Generally, “[c]ompletion of the review process 14 by the Office of Appeals constitutes exhaustion of all administrative remedies available to a claimant 15 within the Department.” Cal. Code Regs. tit. 15, § 3486. The Supreme Court has held that there are no 16 “special circumstances” exceptions to the exhaustion requirement. Ross v. Blake, 578 U.S. 1174, 136 17 S.Ct. 1850, 1856 (2016). However, the one significant qualifier is that “the remedies must indeed be 18 ‘available’ to the prisoner.” Id. As described by the Ross Court: 19 [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 20 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 21 speaking, incapable of use. . . . And finally, the same is true when prison administrators thwart 22 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 23 pursuit of relief renders the administrative process unavailable. And then, once again, § 1997e(a) poses no bar. 24
25 Id. at 1859-60. 26 It is clear from the face of Plaintiff’s complaint that he has not exhausted administrative remedies 27 pursuant to the Prison Litigation Reform Act, 41 U.S.C.
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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, ) ) FINDINGS AND RECOMMENDATION 13 v. ) RECOMMENDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO 14 CALIFORNIA DEPARTMENT OF ) EXHAUST THE ADMINISTRATIVE REMEDIES CORRECTIONS AND REHABILITATION, ) 15 et al., ) (ECF No. 19) ) 16 ) Defendants. ) 17 )
18 Plaintiff Steven Deon Turner, Jr., is proceeding pro se in this civil rights action pursuant to 42 19 U.S.C. § 1983. 20 Plaintiff filed the instant action on April 22, 2021. 21 On September 1, 2021, the Court ordered Plaintiff to show cause why the action should not be 22 dismissed, without prejudice, for failure to exhaust the administrative remedies. (ECF No. 19.) 23 Plaintiff filed a response on September 17, 2021. (ECF No. 20.) In his response, Plaintiff concedes 24 that “it is in my best interest to request that this case be dismissed.” (Id. at 1.) 25 I. 26 SCREENING REQUIREMENT 27 The Court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 1 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 2 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 3 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 4 U.S.C. § 1915A(b). 5 A complaint must contain “a short and plain statement of the claim showing that the pleader is 6 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 7 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 8 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 9 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 10 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 11 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 12 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 13 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 14 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 15 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 16 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 17 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 18 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 19 II. 20 EXHAUSTION OF ADMINISTRATIVE REMEDIES 21 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with respect 22 to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any 23 jail, prison, or other correctional facility until such administrative remedies as are available are 24 exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative 25 remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 26 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner 27 and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the 28 exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 1 (2002). 2 Prisoners are required to exhaust before bringing suit. Booth, 532 U.S. at 741. From the face 3 of Plaintiff’s Complaint, it is clear that Plaintiff filed suit prematurely and in such instances, the case 4 may be dismissed. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (where failure to 5 exhaust is clear from face of complaint, case is subject to dismissal for failure to state a claim under 6 Rule 12(b)(6)); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to 7 nonexhaustion is a valid ground for dismissal....”) (overruled on other grounds by Albino, 747 F.3d at 8 1168-69); see also Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to 9 state a claim under § 1915A ‘incorporates the familiar standard applied in the context of failure to 10 state a claim under Federal Rule of Civil Procedure 12(b)(6).’ ”) (quoting Wilhelm v. Rotman, 680 11 F.3d 1113, 1121 (9th Cir. 2012)). 12 There are currently two levels of review within the California prison administrative grievance 13 process. Cal. Code Regs. tit. 15, §§ 3482, 3483, 3486. Generally, “[c]ompletion of the review process 14 by the Office of Appeals constitutes exhaustion of all administrative remedies available to a claimant 15 within the Department.” Cal. Code Regs. tit. 15, § 3486. The Supreme Court has held that there are no 16 “special circumstances” exceptions to the exhaustion requirement. Ross v. Blake, 578 U.S. 1174, 136 17 S.Ct. 1850, 1856 (2016). However, the one significant qualifier is that “the remedies must indeed be 18 ‘available’ to the prisoner.” Id. As described by the Ross Court: 19 [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 20 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 21 speaking, incapable of use. . . . And finally, the same is true when prison administrators thwart 22 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 23 pursuit of relief renders the administrative process unavailable. And then, once again, § 1997e(a) poses no bar. 24
25 Id. at 1859-60. 26 It is clear from the face of Plaintiff’s complaint that he has not exhausted administrative remedies 27 pursuant to the Prison Litigation Reform Act, 41 U.S.C. § 1997 (e)(a), before filing this lawsuit. 28 Plaintiff states, “COVID-19 poses a high risk of serious illness or death[.] If there were any 1 || administrative remedies available to Plaintiff, in two month time, Plaintiff may be seriously ill fro 2 || COVID-19 or worse. Thus, this pandemic creates a rare situation where the exhaustion of remedies ru 3 || does not apply because denial of judicial review “immediately” would result in irreparable damage 4 || Plaintiff life and health.” (Compl. at 4.) Plaintiff has failed to demonstrate that any of the □□□□□□□□□□□ 5 set forth in Ross apply. Rather, he contends that it may take two months to exhaust □□□□□□□□□□□□□ 6 ||remedies, and he speculates that he could become seriously ill within that time period. However, tl 7 ||Supreme Court has not recognized a “lengthy-of-time or “futility” exception to the exhaustic 8 || requirement. See Booth, 532 U.S. at 741 n.6. Thus, it is clear on the face of the complaint that Plainti 9 || failed to exhaust his administrative remedies before filing suit, and Plaintiff concedes to dismissal of th 10 || action. (ECF No. 20.) Accordingly, dismissal of the instant action, without prejudice, is warranted. 11 I. 12 RECOMMENDATION 13 Based on the foregoing, it is HEREBY RECOMMENDED that the instant action be dismisse 14 || without prejudice, for failure to exhaust remedies prior to filing suit. 15 This Findings and Recommendation will be submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days 17 || after being served with this Findings and Recommendation, Plaintiff may file written objections with 18 || the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 19 || Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 20 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 21 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 ||} ITIS SO ORDERED. A (re 24 |! pated: _ September 21, 2021 OF 25 UNITED STATES MAGISTRATE JUDGE 26 27 28