(PC)Zinman v. Cogburn

• Court: District Court, E.D. California
• Decided: November 7, 2024
• Docket: 1:24-cv-01320
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN MARCUS ZINMAN, Case No. 1:24-cv-01320-CDB (PC)

12 Plaintiff, ORDER TO SHOW CAUSE IN WRITING 13 v. WITHIN 30 DAYS WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO 14 R. COGBURN, EXHAUST ADMINISTRATIVE REMEDIES

15 Defendant. ORDER TO SUBMIT APPLICATION TO 16 PROCEED IN FORMA PAUPERIS OR PAY FILING FEE WITHIN 45 DAYS 17 18 Clerk of the Court to Attach IFP Application 19 Background 20 Plaintiff Justin Marcus Zinman is a state prisoner proceeding pro se in this civil rights action 21 pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint with this Court on October 28, 2024. 22 (Doc. 1). 23 Plaintiff has not paid the $405.00 filing fee or submitted an application to proceed in forma 24 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. Accordingly, the Court will direct Plaintiff to pay 25 the filing fee in full or submit an IFP application. 26 Furthermore, a brief review of the complaint reveals the incident giving rise to Plaintiff’s 27 claims occurred on September 27, 2024. (Id. at 7). In his complaint, Plaintiff attests that his “claims 28 1 have not been formally exhausted because . . .there is no form of administrative relief possible in 2 this matter[,] [Plaintiff] personally attempted to resolve this situation twice which proved to be the 3 most amount of due diligence possible outside of Court[, and] this situation involves the threat of 4 imminent health complications to [Plaintiff].” (Id. at 1:23–29). Nevertheless, Plaintiff has not 5 shown he has exhausted his administrative remedies between September 27, 2024—the date of the 6 subject incident—and October 28, 2024, the date he filed his complaint. 7 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 8 respect to prison conditions under . . . any other Federal law . . . by a prisoner confined in any jail, 9 prison, or other correctional facility until such administrative remedies as are available are 10 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 11 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 12 omitted). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 13 Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 14 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 15 Inmates are required to “complete the administrative review process in accordance with the 16 applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.” 17 Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). In California, state-inmate grievances are subject to 18 two levels of review. See Cal. Code Regs. tit. 15, §§ 3481(a), 3999.226(a)(1). Prisoners must 19 generally receive a disposition from the second level of review before administrative remedies are 20 deemed exhausted. See id. §§ 3483(m)(1), 3486(m), 3999.226(h); but see id. § 3483(m)(2). 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 v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 24 Here, it appears clear on the face of his complaint that Plaintiff has failed to exhaust 25 administrative remedies prior to filing suit. Although Plaintiff assert that “no form of 26 administrative relief [is] possible in this matter,” that is not a proper basis to fail to pursue 27 administrative remedies. 28 Accordingly, the Court will direct Plaintiff to make a written filing in which he sets forth 1 | the reasons by this Court should not dismiss this action for his failure to exhaust administrative 2 | remedies. 3 | Conclusion and Order 4 Accordingly, it is HEREBY ORDERED: 5 1. Within 30 days of the date of this Order, Plaintiff shall show cause in writing why 6 | this action should not be dismissed for his failure to exhaust. Alternatively, Plaintiff may file a 7 | notice of voluntary dismissal; and 8 2. Within 45 days of the date of this Order, Plaintiff shall submit the attached 9 | application to proceed in forma pauperis, completed and signed, or in the alternative, pay the 10 | $405.00 filing fee for this action. 11 No requests for extension will be granted without a showing of good cause. Failure to 12 | comply with this order will result in a recommendation that this action be dismissed. 13 | IT IS SO ORDERED. Dated: _ November 6, 2024 | Vv Vv RR 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28