(PC) Davis v. Herrera

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 MALIK DAVIS, No. 1:24-cv-00896 GSA (PC)

12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW

CAUSE WHY THIS MATTER SHOULD NOT

13 v. BE DISMISSED FOR FAILURE TO

EXHAUST ADMINISTRATIVE REMEDIES

14 JASMIN HERRERA, et al.,

PLAINTIFF’S SHOWING OF CAUSE DUE

15 Defendants. AUGUST 20, 2024

16

17

18 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

19 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. ECF Nos. 1,

20 2, 5 (complaint; in forma pauperis application; trust account statement, respectively). The matter

21 was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local

22 Rule 302.

23 For the reasons stated below, Plaintiff will be ordered to show cause why this matter

24 should not be dismissed for failure to exhaust administrative remedies. He will be given fourteen

25 days to file the showing of cause.

26 I. PROCEDURAL HISTORY

27 On August 2, 2024, Plaintiff’s complaint and his application to proceed in forma pauperis

28

1 were docketed. ECF Nos. 1, 2. Shortly thereafter, in accord with 28 U.S.C. § 1915(a)(2),

2 Plaintiff’s prisoner trust fund account statement was filed thereby completing his in forma

3 pauperis application. See ECF No. 5.

4 II. THE COMPLAINT

5 A. Facts Alleged and Remedy Sought

6 The record indicates that Plaintiff was an inmate at Kern Valley State Prison (“KVSP") at

7 the time of the incidents in question.1 See ECF No. 1 at 1-2. In the complaint, Plaintiff names

8 three KVSP peace officer as defendants. Id. He raises three claims against Defendants stemming

9 from an incident which allegedly occurred in May 2023. Id. at 3-5.

10 Plaintiff claims that the incident left him with head, neck, and lower extremity trauma.

11 ECF No. 1 at 3. He seeks injunctive relief, various damages according to proof, and attorneys’

12 fees. Id. at 6.

13 B. Exhaustion Issue

14 In the complaint, Plaintiff states that administrative remedies are available at his

15 institution. ECF No. 1 at 3-5 (Claims One, Two and Three). However, when asked whether he

16 exhausted those remedies, in Claim 1 Plaintiff fails to check the box indicating that he appealed to

17 the highest level, and in Claims 2 and 3 he marks the two boxes which indicate that he did not

18 participate in the exhaustion process. See id.

19 III. APPLICABLE LAW: THE EXHAUSTION REQUIREMENT

20 A. The Prison Litigation Reform Act

21 Because Plaintiff is a prisoner challenging the conditions of his confinement, his claims

22 are subject to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The PLRA

23 requires prisoners to exhaust available administrative remedies before bringing an action

24 challenging prison conditions under Section 1983. 42 U.S.C. § 1997e(a). “The PLRA mandates

25 that inmates exhaust all available administrative remedies before filing ‘any suit challenging

26 prison conditions,’ including, but not limited to, suits under [Section] 1983.” Albino v. Baca, 747

27

1 Currently, Plaintiff is incarcerated at California Substance Abuse and Treatment Facility. See

28 ECF No. 1 at 1.

1 F.3d 1162, 1171 (9th Cir. 2014) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)).

2 “[F]ailure to exhaust is an affirmative defense under the PLRA.” Jones v. Bock, 549 U.S.

3 199, 216 (2007). As a result, it is usually a defendant's burden “to prove that there was an

4 available administrative remedy, and that the prisoner did not exhaust that available remedy.”

5 Albino, 747 F.3d at 1172 (citing Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir.

6 1996)). The burden then “shifts to the prisoner to come forward with evidence showing that there

7 is something in his particular case that made the existing and generally available administrative

8 remedies unavailable to him.” Id.

9 At the same time, however, a complaint may be subject to dismissal for failure to state a

10 claim when an affirmative defense (such as failure to exhaust) appears on the face of the pleading.

11 See Jones, 549 U.S. at 215 (parenthetical added) (citation omitted). Exhaustion is not a

12 jurisdictional requirement for bringing an action. See Woodford, 548 U.S. at 101 (citing to 42

13 U.S.C. § 1997e(c)(2) to remind that matter may be dismissed on face if frivolous, malicious, or

14 fails to state claim without first requiring exhaustion of administrative remedies).

15 Regardless of the relief sought, “[t]he obligation to exhaust ‘available’ remedies persists

16 as long as some remedy remains ‘available.’ Once that is no longer the case, then there are no

17 ‘remedies ... available,’ and the prisoner need not further pursue the grievance.” Brown v. Valoff,

18 422 F.3d 926, 935 (9th Cir. 2005) (emphasis and alteration in original) (citing Booth v. Churner,

19 532 U.S. 731 (2001)).

20 “Under § 1997e(a), the exhaustion requirement hinges on the ‘availab[ility]’ of

21 administrative remedies: An inmate ... must exhaust available remedies, but need not exhaust

22 unavailable ones.” Ross v. Blake, 578 U.S. 632, 642 (2016) (brackets in original). In discussing

23 availability in Ross, the Supreme Court identified three circumstances in which administrative

24 remedies were unavailable: (1) where an administrative remedy “operates as a simple dead end”

25 in which officers are “unable or consistently unwilling to provide any relief to aggrieved

26 inmates;” (2) where an administrative scheme is “incapable of use” because “no ordinary prisoner

27 can discern or navigate it;” and (3) where “prison administrators thwart inmates from taking

28 advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross,

1 578 U.S. at 643-44. “[A]side from [the unavailability] exception, the PLRA's text suggests no

2 limits on an inmate's obligation to exhaust – irrespective of any ‘special circumstances.’ ” Id. at

3 639. “[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes,

4 foreclosing judicial discretion.” Id. at 639.

5 B. California Regulations Governing Exhaustion of Administrative Remedies

6 “The California prison system's requirements ‘define the boundaries of proper

7 exhaustion.’ ” Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (quoting Jones, 549 U.S.

8 at 218). In order to exhaust, the prisoner is required to complete the administrative review

9 process in accordance with all applicable procedural rules. Woodford, 548 U.S. at 90. The

10 appeal process is initiated by an inmate filing a “Form 602” the “Inmate/Parolee Appeal Form,”

11 and describing the specific issue under appeal and the relief requested. “The California prison

12 grievance system has two levels of review. See Cal. Code Regs. tit. 15, §§ 3999.226(a)(1);

13 3481(a); 3483; 3485 (health care and standard grievances, respectively). An inmate exhausts

14 administrative remedies by obtaining a decision at each level.” Reyes v. Smith, 810 F.3d 654,

15 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b) (2011)) (repealed); Harvey v.

16 Jordan, 605 F.3d 681, 683 (9th Cir. 2010)).

17 IV. DISCUSSION

18 A. Has Plaintiff Brought His Action Before Exhausting Administrative Remedies?

19 1. Section 1997e(a): Definition of “Brought”

20 Section 1997e(a) states that no action can be brought in federal court before prison

21 remedies have been exhausted. 42 U.S.C. § 1997e(a); Jones, 549 U.S. at 202 (stating exhaustion

22 must be completed before filing suit in federal court). In Vaden v. Summerhill, 449 F.3d 1047

23 (9th Cir. 2006), the Ninth Circuit determined that the word “brought” for Section 1997e(a)

24 purposes means when the complaint is tendered to the district clerk, not when it is subsequently

25 filed. Akhtar v. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012); Vaden, 449 F.3d at 1050 (agreeing

26 with Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004) and adopting holding as its own); O’Neal

27 v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008) (citing Vaden, citing Ford); see generally Rhodes v.

28 Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“[A] prisoner must exhaust his administrative

1 remedies . . . before that complaint is tendered to the district court.”).

2 The filing of a grievance serves to give a prison notice of the problem that a prisoner

3 would like to have resolved. See generally Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010);

4 Parthemore v. Col, 221 Cal. App. 4th 1372, 1380 (2013). Additionally, the purpose of the

5 exhaustion requirement is to give corrections officials both the time and the opportunity to

6 address complaints internally before a federal case is started. Porter v. Nussle, 534 U.S. 516,

7 524-25 (2002); Vaden, 449 F.3d at 1050 (quoting Nussle).

8 2. Analysis

9 Plaintiff “brought” this action within the meaning of Section 1997e(a) when he gave it to

10 the district clerk. As set forth above, the complaint clearly indicates that Plaintiff had not

11 exhausted his administrative remedies at KVSP prior to bringing this action. See ECF No. 1 at 3-

12 5. Specifically, at the end of Claim 2 of the complaint in the space provided for an explanation as

13 to why Plaintiff did not exhaust, Plaintiff states as follows: “did not know [he] could file a claim

14 on CDCR’s inaction. Lay-man-at-law, informed by writ writer.” Id. at 4 (brackets added)

15 (errors in original). Under Claim 3, when prompted again to explain his failure to exhaust

16 Plaintiff writes: “Please Refer to Claim [2] Administrative Remedies”.

17 Neither the fact that Plaintiff was unaware of how to proceed with an administrative

18 review, that he is a layman, or perhaps was given incorrect information by a “writ writer” , none

19 of these circumstances serves as a valid excuse under Ross which would permit him to proceed

20 with this case without having first exhausted. Therefore, this matter should be dismissed without

21 prejudice. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (2003) (“A prisoner’s concession to

22 nonexhaustion is a valid ground for dismissal so long as no exception to exhaustion applies.”),

23 overruled on other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014).

24 However, prior to making the recommendation of dismissal, Plaintiff will first be ordered

25 to show cause why it should not be. He will be given fourteen days to do so.

26 B. Plaintiff’s In Forma Pauperis Application Is Premature

27 1. Definition of “Filed”

28 A complaint must be “brought,” i.e., given to the district court clerk, before it can be filed.

1 A complaint is formally “filed” when a court authorizes the commencement of suit without

2 prepayment of filing fees under 28 U.S.C. § 1915, which is the in forma pauperis statute. Vaden,

3 449 F.3d at 1050. This is because a district court needs time both to review an in forma pauperis

4 application and to screen the substance of a complaint. Id.

5 2. Analysis

6 Because Plaintiff has “brought” this matter within the meaning of Section 1997e(a) before

7 exhausting his administrative remedies, the Court cannot consider his complaint. See generally

8 Albino, 747 F.3d at 1170 (“Exhaustion should be decided, if feasible, before reaching the merits

9 of a prisoner’s claim.”). As a result, formally filing the complaint by considering Plaintiff’s

10 application to proceed in forma pauperis and screening the pleading at this time would be

11 premature. Therefore, the Court will not address Plaintiff’s application to proceed in forma

12 pauperis at this time, but instead the Court will address it after the question of exhaustion has

13 been addressed by Plaintiff in his showing of cause.

14 Accordingly, IT IS HEREBY ORDERED that within fourteen days from the date of this

15 order – by August 20, 2024, – Plaintiff shall SHOW CAUSE why this matter should not be

16 dismissed for failure to exhaust administrative remedies. See 42 U.S.C. § 1997e(a).

17 Plaintiff is cautioned that failure to respond to this order within the time allotted

18 may result in a recommendation that this matter be dismissed.

19 Plaintiff is further cautioned that absent exigent circumstances, no requests for

20 extensions of time will be granted.

21

IT IS SO ORDERED.

22

23 Dated: August 6, 2024 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

24

25

26

27

28