# (PC) Bonilla v. Toscano > District Court, E.D. California · February 21, 2025 URL: https://www.frixlaw.com/law-library/cases/10804576 ## Case - **Court:** District Court, E.D. California - **Decided:** February 21, 2025 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10804576 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RENE BONILLA, Case No. 1:25-cv-00211-HBK (PC) 12 Plaintiff, ORDER DEFERRING RULING ON MOTION TO PROCEED IN FORMA PAUPERIS AND 13 v. ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR 14 M. TOSCANO, Correctional Officer, FAILURE TO EXHAUST1 15 Defendant. MARCH 20, 2025 DEADLINE 16 17 Pending before the Court for screening under 28 U.S.C. § 1915A is the pro se civil rights 18 complaint filed under 42 U.S.C. § 1983 by Rene Bonilla—a prisoner, which was constructively 19 filed on February 4, 2025.2 (Doc. No. 1, “complaint”). Also pending is Plaintiff’s motion to 20 proceed in forma pauperis. (Doc. No. 2). Upon review of the complaint, it appears Plaintiff did 21 not complete the administrative remedies available through the California Department of 22 Corrections (“CDCR”) prior to commencing this action. A failure to exhaust administrative 23 remedies is fatal to a prisoner’s complaint. 24 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 25 (E.D. Cal. 2023). 2 The Court applies the “prison mailbox rule” to pro se prisoner complaints, deeming the complaint filed 26 on the date the prisoner delivers it to prison authorities for forwarding to the clerk of court. See Saffold v. Newland, 250 F.3d 1262, 1265, 1268 (9th Cir.2000), overruled on other grounds, Carey v. Saffold, 536 27 U.S. 214 (2002). Plaintiff certifies he delivered the complaint to correctional officials on February 4, 2025. (See Doc. No. 1 at 24). 28 1 Prior to ruling on Plaintiff’s motion to proceed in forma pauperis and assessing the $350 2 filing fee and recommending a dismissal of this action, the Court will afford Plaintiff two options: 3 (1) to voluntarily dismiss this action without prejudice to refiling a new action once the 4 administrative remedies are fully exhausted; or (2) show cause why the Court should not dismiss 5 the complaint for failure to exhaust administrative remedies which appears apparent from the face 6 of the complaint. Plaintiff is warned that if he commenced this action before properly and fully 7 exhausting his administrative remedies and he is not excused from the exhaustion requirement, a 8 dismissal on this basis will count as a strike under 1915(g).3 El-Shaddai v. Zamora, 833 F.3d 9 1036, 1043–44 (9th Cir. 2016). Alternatively, because no defendant has yet been served, Plaintiff 10 may file a notice of voluntarily dismissal without prejudice under Federal Rule of Civil Procedure 11 41 to avoid a strike. Once the administrative remedies are fully and properly exhausted, Plaintiff 12 may refile a new complaint in a new action. 13 Plaintiff is advised that under the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o 14 action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other 15 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 16 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is 17 condition precedent to filing a civil suit. Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also 18 McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (“Congress could have written a statute 19 making exhaustion a precondition to judgment, but it did not. The actual statute makes 20 exhaustion a precondition to suit.” (citation omitted)). The exhaustion requirement “applies to 21 all inmate suits about prison life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the 22 nature of the relief sought by the prisoner, or the relief offered by the prison’s administrative 23 process is of no consequence. Booth v. Churner, 532 U.S. 731, 741 (2001). And, because the 24 PLRA’s text and intent requires “proper” exhaustion, a prisoner does not satisfy the PLRA’s 25 administrative grievance process if he files an untimely or procedurally defective grievance or 26 appeal. Woodford, 548 U.S. at 93. 27 3 An inmate who accumulates three or more strikes may be barred from proceeding in forma pauperis in future civil 28 actions. 1 The PLRA recognizes no exception to the exhaustion requirement, and the court may not 2 recognize a new exception, even in “special circumstances.” Ross v. Blake, 136 S. Ct. 1850, 1862 3 (2016). The one significant qualifier is that “the remedies must indeed be ‘available’ to the 4 prisoner.” Id. at 1856. A defendant has the burden of showing that “some relief remains 5 ‘available.’” Brown v. Valoff, 422 F.3d 926, 936-937 (9th Cir. 2005). “To be available, a remedy 6 must be available ‘as a practical matter’; it must be ‘capable of use; at hand.’” Albino v. Baca, 7 747 F.3d 1162, 1171 (9th Cir. 2014) (quoting Brown, 422 F.3d at 937). 8 A prisoner need not plead or prove exhaustion in a civil rights action. Rather, is an 9 affirmative defense that must be proved by defendant. Jones v. Bock, 549 U.S. 199, 211 (2007). 10 A prison’s internal grievance process, not the PLRA, determines whether the grievance satisfies 11 the PLRA exhaustion requirement. Id. at 218. However, where exhaustion is apparent from the 12 face of a complaint, the court is required to dismiss the complaint without prejudice, and the 13 dismissal constitutes a strike under the PLRA. El-Shaddai v. Zamora, 833 F.3d 1036, 1043–44 14 (9th Cir. 2016). 15 Here, Plaintiff admits on the face of his complaint that there is administrative remedy 16 process available to him at his institution, but in response to whether the process is complete he 17 checks both boxes, “Yes” and “No” and states “I’m submitting the last level today 1/24/25.” 18 (Doc. No. 1 at 3, ¶5 (d)). As noted, exhaustion is a condition precedent, in other words an inmate 19 must have completed the available administrative remedy before he files his civil action in 20 federal court. Thus, if Plaintiff had not received a response from CDCR to his appeal at the time 21 he constructively filed this action, the action will be considered prematurely filed and subject to 22 dismissal. In an abundance of caution, the Court will defer ruling on Plaintiff’s motion to 23 proceed in forma pauperis and assessing the $350 filing fee in case Plaintiff wishes to avail 24 himself of the option of dismissing this case without prejudice and refiling after he receives a 25 response to this appeal. 26 //// 27 //// 28 //// ee eee non nn ee enn OE I I 1 Accordingly, it is hereby ORDERED: 2 1. No later than March 20, 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)(ji).* 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 '? | Dated: _ February 20, 2025 Wile. Th 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 | 4 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 permits a 28 | party to refile an action. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10804576. Public record. Not legal advice.