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6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN VENTURA, Case No. 1:21-cv-00926-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, v. RECOMMENDING THAT THIS ACTION BE 13 DISMISSED, WITHOUT PREJUDICE, FOR PATRICK EATON, et al., FAILURE TO EXHAUST AVAILABLE 14 ADMINISTRATIVE REMEDIES AND THAT Defendants. PLAINTIFF’S APPLICATION TO PROCEED IN 15 FORMA PAUPERIS BE DENIED AS MOOT
16 (ECF Nos. 1 & 2)
17 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
18 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 19 20 Ruben Ventura (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 21 action filed pursuant to 42 U.S.C. § 1983. 22 Based on the face of the complaint, Plaintiff did not exhaust his available administrative 23 remedies before filing this action. Accordingly, the Court issues these findings and 24 recommendations, recommending that this action be dismissed, without prejudice, for failure to 25 exhaust available administrative remedies. As the Court is recommending that this action be 26 dismissed, the Court also recommends that Plaintiff’s application to proceed in forma pauperis 27 (ECF No. 2) be denied as moot. 28 Plaintiff has fourteen days from the date of service of these findings and 1 recommendations to file objections. 2 I. BACKGROUND 3 In his complaint, Plaintiff alleges two claims. For both claims, Plaintiff admits that 4 administrative remedies were available and that he did not file a grievance before filing this 5 action. (ECF No. 1, pgs. 3 & 4). Accordingly, on June 16, 2021, the Court ordered Plaintiff to 6 show cause why this action should not be dismissed for failure to exhaust available 7 administrative remedies. (ECF No. 4). 8 II. PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE 9 Plaintiff filed his response to the order to show cause on July 15, 2021. (ECF No. 6). 10 Plaintiff once again admits that there were available administrative remedies. (Id. at 1). 11 However, Plaintiff argues that those remedies were not available to him. Plaintiff argues that 12 the relevant procedures lacked authority to provide him with any relief and acted as a dead-end 13 because he caught COVID-19 “due to the wanton disregard by the defendants,” and the “only 14 remedy for this is to un-contract the virus, which is not possible.” (Id. at 1-2). 15 III. LEGAL STANDARDS 16 Currently, the California prison grievance system has two levels of review. Cal. Code 17 Regs. tit. 15, §§ 3483, 3486. Generally, “[c]ompletion of the review process by the Office of 18 Appeals constitutes exhaustion of all administrative remedies available to a claimant within the 19 Department.” Cal. Code Regs. tit. 15, § 3486. 20 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 21 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 22 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 23 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 24 Prisoners are required to exhaust the available administrative remedies prior to filing 25 suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 26 (9th Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating 27 to prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of 28 the relief sought by the prisoner and regardless of the relief offered by the process, unless “the 1 relevant administrative procedure lacks authority to provide any relief or to take any action 2 whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); see 3 also Ross v. Blake, 136 S.Ct. 1850, 1857, 1859 (2016). 4 “Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong 5 for which redress is sought. The grievance need not include legal terminology or legal theories, 6 because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its 7 resolution, not to lay groundwork for litigation. The grievance process is only required to alert 8 prison officials to a problem, not to provide personal notice to a particular official that he may 9 be sued.” Reyes, 810 F.3d at 659 (alteration in original) (citations and internal quotation marks 10 omitted). 11 As discussed in Ross, 136 S.Ct. at 1862, there are no “special circumstances” 12 exceptions to the exhaustion requirement. The one significant qualifier is that “the remedies 13 must indeed be ‘available’ to the prisoner.” Id. at 1856. The Ross Court described this 14 qualification as follows: 15 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a 16 simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. See 532 U.S., at 736, 17 738, 121 S.Ct. 1819…. 18 Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use…. And finally, 19 the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, 20 misrepresentation, or intimidation…. As all those courts have 21 recognized, such interference with an inmate's pursuit of relief renders the administrative process unavailable. And then, once 22 again, § 1997e(a) poses no bar. 23 Id. at 1859-60. 24 “When prison officials improperly fail to process a prisoner’s grievance, the prisoner is 25 deemed to have exhausted available administrative remedies.” Andres v. Marshall, 867 F.3d 26 1076, 1079 (9th Cir. 2017). 27 If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal 28 without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S. 1 at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). 2 IV. ANALYSIS 3 Based on the face of the complaint, Plaintiff did not exhaust his available administrative 4 remedies before filing this action, and Plaintiff’s response to the order to show cause does not 5 provide any allegations suggesting that he exhausted (or that he was excused from exhausting) 6 those remedies. 7 In his complaint, Plaintiff alleges two claims. For both claims, Plaintiff admits that 8 administrative remedies were available and that he did not file a grievance before filing this 9 action. (ECF No. 1, pgs. 3 & 4). Plaintiff’s sole argument is that he did not have to exhaust 10 because the only possible remedy would be for him to “un-contract” the virus, which is not 11 possible. However, Plaintiff misunderstands the applicable law. As the Court informed 12 Plaintiff in the order to show cause, “[e]xhaustion is not required only where the grievance 13 procedure can prevent an inmate from being injured. Instead, it is required regardless of the 14 relief sought and regardless of the relief offered by the process, unless ‘the relevant 15 administrative procedure lacks authority to provide any relief or to take any action whatsoever 16 in response to a complaint.’ Booth, 532 U.S.
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6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN VENTURA, Case No. 1:21-cv-00926-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, v. RECOMMENDING THAT THIS ACTION BE 13 DISMISSED, WITHOUT PREJUDICE, FOR PATRICK EATON, et al., FAILURE TO EXHAUST AVAILABLE 14 ADMINISTRATIVE REMEDIES AND THAT Defendants. PLAINTIFF’S APPLICATION TO PROCEED IN 15 FORMA PAUPERIS BE DENIED AS MOOT
16 (ECF Nos. 1 & 2)
17 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
18 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 19 20 Ruben Ventura (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 21 action filed pursuant to 42 U.S.C. § 1983. 22 Based on the face of the complaint, Plaintiff did not exhaust his available administrative 23 remedies before filing this action. Accordingly, the Court issues these findings and 24 recommendations, recommending that this action be dismissed, without prejudice, for failure to 25 exhaust available administrative remedies. As the Court is recommending that this action be 26 dismissed, the Court also recommends that Plaintiff’s application to proceed in forma pauperis 27 (ECF No. 2) be denied as moot. 28 Plaintiff has fourteen days from the date of service of these findings and 1 recommendations to file objections. 2 I. BACKGROUND 3 In his complaint, Plaintiff alleges two claims. For both claims, Plaintiff admits that 4 administrative remedies were available and that he did not file a grievance before filing this 5 action. (ECF No. 1, pgs. 3 & 4). Accordingly, on June 16, 2021, the Court ordered Plaintiff to 6 show cause why this action should not be dismissed for failure to exhaust available 7 administrative remedies. (ECF No. 4). 8 II. PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE 9 Plaintiff filed his response to the order to show cause on July 15, 2021. (ECF No. 6). 10 Plaintiff once again admits that there were available administrative remedies. (Id. at 1). 11 However, Plaintiff argues that those remedies were not available to him. Plaintiff argues that 12 the relevant procedures lacked authority to provide him with any relief and acted as a dead-end 13 because he caught COVID-19 “due to the wanton disregard by the defendants,” and the “only 14 remedy for this is to un-contract the virus, which is not possible.” (Id. at 1-2). 15 III. LEGAL STANDARDS 16 Currently, the California prison grievance system has two levels of review. Cal. Code 17 Regs. tit. 15, §§ 3483, 3486. Generally, “[c]ompletion of the review process by the Office of 18 Appeals constitutes exhaustion of all administrative remedies available to a claimant within the 19 Department.” Cal. Code Regs. tit. 15, § 3486. 20 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 21 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 22 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 23 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 24 Prisoners are required to exhaust the available administrative remedies prior to filing 25 suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 26 (9th Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating 27 to prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of 28 the relief sought by the prisoner and regardless of the relief offered by the process, unless “the 1 relevant administrative procedure lacks authority to provide any relief or to take any action 2 whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); see 3 also Ross v. Blake, 136 S.Ct. 1850, 1857, 1859 (2016). 4 “Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong 5 for which redress is sought. The grievance need not include legal terminology or legal theories, 6 because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its 7 resolution, not to lay groundwork for litigation. The grievance process is only required to alert 8 prison officials to a problem, not to provide personal notice to a particular official that he may 9 be sued.” Reyes, 810 F.3d at 659 (alteration in original) (citations and internal quotation marks 10 omitted). 11 As discussed in Ross, 136 S.Ct. at 1862, there are no “special circumstances” 12 exceptions to the exhaustion requirement. The one significant qualifier is that “the remedies 13 must indeed be ‘available’ to the prisoner.” Id. at 1856. The Ross Court described this 14 qualification as follows: 15 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a 16 simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. See 532 U.S., at 736, 17 738, 121 S.Ct. 1819…. 18 Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use…. And finally, 19 the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, 20 misrepresentation, or intimidation…. As all those courts have 21 recognized, such interference with an inmate's pursuit of relief renders the administrative process unavailable. And then, once 22 again, § 1997e(a) poses no bar. 23 Id. at 1859-60. 24 “When prison officials improperly fail to process a prisoner’s grievance, the prisoner is 25 deemed to have exhausted available administrative remedies.” Andres v. Marshall, 867 F.3d 26 1076, 1079 (9th Cir. 2017). 27 If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal 28 without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S. 1 at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). 2 IV. ANALYSIS 3 Based on the face of the complaint, Plaintiff did not exhaust his available administrative 4 remedies before filing this action, and Plaintiff’s response to the order to show cause does not 5 provide any allegations suggesting that he exhausted (or that he was excused from exhausting) 6 those remedies. 7 In his complaint, Plaintiff alleges two claims. For both claims, Plaintiff admits that 8 administrative remedies were available and that he did not file a grievance before filing this 9 action. (ECF No. 1, pgs. 3 & 4). Plaintiff’s sole argument is that he did not have to exhaust 10 because the only possible remedy would be for him to “un-contract” the virus, which is not 11 possible. However, Plaintiff misunderstands the applicable law. As the Court informed 12 Plaintiff in the order to show cause, “[e]xhaustion is not required only where the grievance 13 procedure can prevent an inmate from being injured. Instead, it is required regardless of the 14 relief sought and regardless of the relief offered by the process, unless ‘the relevant 15 administrative procedure lacks authority to provide any relief or to take any action whatsoever 16 in response to a complaint.’ Booth, 532 U.S. at 736 (emphasis added); see also Ross, 136 S.Ct. 17 at 1857.” (ECF No. 4, p. 3 n.1). 18 And here, there are no allegations suggesting that the administrative procedure lacked 19 authority to provide any relief or take any action whatsoever. A grievance procedure can 20 provide other forms of relief besides preventing the injury complained of in the grievance. In 21 fact, it is common that by the time an inmate files a grievance, it is too late to prevent the injury 22 that is the subject of the grievance. For example, in Booth, the plaintiff “claimed that 23 respondent corrections officers at Smithfield violated his Eighth Amendment right to be free 24 from cruel and unusual punishment by assaulting him, bruising his wrists in tightening and 25 twisting handcuffs placed upon him, throwing cleaning material in his face, and denying him 26 medical attention to treat ensuing injuries.” 532 U.S. at 734. The plaintiff failed to exhaust 27 administrative remedies, but argued that he was not required to because the process could not 28 provide the only relief he still wanted, which was money damages. Id. at 735. The Supreme 1 Court found that dismissal for failure to exhaust was appropriate, holding that “Congress has 2 mandated exhaustion clearly enough, regardless of the relief offered through administrative 3 procedures.” Id. at 741 (footnote omitted). In so holding, the Supreme Court noted that “one 4 may suppose that the administrative process itself would filter out some frivolous claims and 5 foster better-prepared litigation once a dispute did move to the courtroom, even absent formal 6 factfinding.” Id. at 737. See also Woodford v. Ngo, 548 U.S. 81, 94-95 (2006) (“[P]roper 7 exhaustion improves the quality of those prisoner suits that are eventually filed because proper 8 exhaustion often results in the creation of an administrative record that is helpful to the court. 9 When a grievance is filed shortly after the event giving rise to the grievance, witnesses can be 10 identified and questioned while memories are still fresh, and evidence can be gathered and 11 preserved.”). 12 As Plaintiff admits that administrative remedies were available and that he did not file a 13 grievance before filing this action, and as there are no allegations in Plaintiff’s complaint or his 14 response to the order to show cause suggesting that he exhausted (or was excused from 15 exhausting) the available administrative remedies, the Court will recommend that this action be 16 dismissed, without prejudice, for failure to exhaust available administrative remedies. 17 V. RECOMMENDATIONS AND ORDER 18 Based on the foregoing, the Court HEREBY RECOMMENDS that: 19 1. This action be dismissed, without prejudice, for failure to exhaust available 20 administrative remedies; 21 2. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) be denied as 22 moot; and 23 3. The Clerk of Court be directed to close this case. 24 These findings and recommendations will be submitted to the United States district 25 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 26 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 27 file written objections with the Court. The document should be captioned “Objections to 28 Magistrate Judge’s Findings and Recommendations.” 1 Plaintiff is advised that failure to file objections within the specified time may result in 2 || the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 3 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 5 || judge to this case. 6 7 IT IS SO ORDERED. 8 || Dated: _ July 26, 2021 [Jee hey 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28