(PC) Wilson v. Shirley

• Court: District Court, E.D. California
• Decided: July 17, 2025
• Docket: 1:23-cv-00518
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN WILSON, Case No. 1:23-cv-00518-LTJ-HBK (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO EXHAUST1 14 HEATHER SHIRLEY, et al. (Doc. No. 4) 15 Defendants. AUGUST 18, 2025 DEADLINE

16 17 18 Pending before the Court for screening under 28 U.S.C. § 1915A is the pro se First 19 Amended Complaint filed under 42 U.S.C. § 1983 by Kevin Wilson—a state prisoner. (Doc. No. 20 4, “FAC”). Upon review of the FAC, it appears Plaintiff did not avail himself of the 21 administrative remedies available through the California Department of Corrections (“CDCR”) 22 prior to filing suit. A failure to exhaust administrative remedies is fatal to a prisoner’s complaint. 23 Prior to recommending dismissal of this action, the Court will afford Plaintiff an 24 opportunity to show cause why the Court should not dismiss the FAC for failure to exhaust 25 administrative remedies. Plaintiff is warned that if he commenced this action before exhausting 26 his administrative remedies and he is not excused from the exhaustion requirement, a dismissal on 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2023). 1 this basis will count as a strike under 1915(g).2 El-Shaddai v. Zamora, 833 F.3d 1036, 1043–44 2 (9th Cir. 2016). Alternatively, because no defendant has yet been served, Plaintiff may file a 3 notice of voluntarily dismissal without prejudice under Federal Rule of Civil Procedure 41 to 4 avoid a strike. After Plaintiff exhausts his administrative remedies, he may refile a new 5 complaint in a new action. 6 Under the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be brought 7 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 8 prisoner confined in any jail, prison, or other correctional facility until such administrative 9 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is condition 10 precedent to filing a civil suit. Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also McKinney v. 11 Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (“Congress could have written a statute making 12 exhaustion a precondition to judgment, but it did not. The actual statute makes exhaustion a 13 precondition to suit.” (citation omitted)). The exhaustion requirement “applies to all inmate suits 14 about prison life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the nature of the relief 15 sought by the prisoner or the relief offered by the prison’s administrative process is of no 16 consequence. Booth v. Churner, 532 U.S. 731, 741 (2001). And, because the PLRA’s text and 17 intent requires “proper” exhaustion, a prisoner does not satisfy the PLRA’s administrative 18 grievance process if he files an untimely or procedurally defective grievance or appeal. 19 Woodford, 548 U.S. at 93. 20 The PLRA recognizes no exception to the exhaustion requirement, and the court may not 21 recognize a new exception, even in “special circumstances.” Ross v. Blake, 136 S. Ct. 1850, 1862 22 (2016). The one significant qualifier is that “the remedies must indeed be ‘available’ to the 23 prisoner.” Id. at 1856. A defendant has the burden of showing that “some relief remains 24 ‘available.’” Brown v. Valoff, 422 F.3d 926, 936-937 (9th Cir. 2005). “To be available, a remedy 25 must be available ‘as a practical matter’; it must be ‘capable of use; at hand.’” Albino v. Baca, 26 2 Under § 1915(g), prisoners who have brought unsuccessful suits may be barred from bringing a civil 27 action and paying the fee on a payment plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, or for failure to state a claim. Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 28 1723 (2020); see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 2007). 1 747 F.3d 1162, 1171 (9th Cir. 2014) (quoting Brown, 422 F.3d at 937). 2 A prisoner need not plead or prove exhaustion in a civil rights action. Rather, is an 3 affirmative defense that must be proved by defendant. Jones v. Bock, 549 U.S. 199, 211 (2007). 4 A prison’s internal grievance process, not the PLRA, determines whether the grievance satisfies 5 the PLRA exhaustion requirement. Id. at 218. However, where exhaustion is apparent from the 6 face of a complaint, the court is required to dismiss the complaint and the dismissal constitutes a 7 strike under the PLRA. El-Shaddai v. Zamora, 833 F.3d 1036, 1043–44 (9th Cir. 2016). 8 Plaintiff admits that there is administrative remedy process available to him at his 9 institution, but in response to whether he filed an appeal or grievance he checks the box, “No.” 10 (Doc. No. 4 at 2). Specifically, Plaintiff explains “I did not file an individual appeal because I 11 was severed from a class-action complaint from which an administrative remedy had been 12 exhausted. Please see Case No: 1:23-cv-00470 BAM . . ..” (Id.). As noted, exhaustion is a 13 condition precedent, in other words an inmate must complete the available administrative remedy 14 before he files his civil action in federal court. Moreover, nothing in the case referenced by 15 Plaintiff indicates that he individually exhausted his administrative remedies. See Damron v. 16 Sims, 2010 WL 3120061, at *2 (S.D. Ohio Jan. 27, 2010) (“[W]hen suits involve multiple inmate 17 Plaintiffs, each individual inmate must have fully exhausted his administrative remedies prior to 18 suit being filed.”), report and recommendation adopted, 2010 WL 3075119 (S.D. Ohio Aug. 3, 19 2010); see also, e.g., Sapp v. Kimbrell, 623 F.3d 813, 823–24 (9th Cir. 2010) (“To fall within 20 [the] exception [to the PLRA’s exhaustion requirement], a prisoner must show that he attempted 21 to exhaust his administrative remedies but was thwarted by improper screening. In particular, the 22 inmate must establish (1) that he actually filed a grievance or grievances that, if pursued through 23 all levels of administrative appeals, would have sufficed to exhaust the claim that he seeks to 24 pursue in federal court, and (2) that prison officials screened his grievance or grievances for 25 reasons inconsistent with or unsupported by applicable regulations.”). 26 //// 27 //// 28 //// eee ene OSE I OIE OI

1 Accordingly, it is hereby ORDERED: 2 1. No later than August 18, 2025, Plaintiff shall deliver to correctional officials for 3 mailing his response to this order to show cause why this action should not be 4 dismissed for his failure to exhaust his administrative remedies. 5 2. Inthe alternative, by the same date, Plaintiff may deliver a notice of voluntary 6 dismissal without prejudice under Federal Rules of Civil Procedure 41(a)(1)(A)(i).? 7 3. Plaintiffs failure to timely to respond to this show cause order will result in the 8 recommendation that this action be dismissed either as a sanction for failure to comply 9 with a court order or prosecute this action consistent with Local Rule 110 and/or for 10 failing to exhaust administrative remedies. 11 2 | Dated: _ July 17. 2025 Mihaw. fareh Zack 13 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE

15 16 17 18 19 20 21 22 23 24 25 26 27 | > This procedural rule vests a plaintiff with authority to voluntarily dismiss an action without prejudice before a party responds to the operative complaint as a matter of law. A without prejudice dismissal 28 permits a party to refile an action.