(PC) Canada v. Niebert, No. 1:2017cv00873 - Document 28 (E.D. Cal. 2017)

Court Description: ORDER Directing Clerk of Court to Randomly Assign District Judge to Action; FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action, without Prejudice, for Failure to Exhaust Administrative Remedies re 24 , 26 , signed by Magistrate Judge Barba ra A. McAuliffe on 12/18/17. This case has been assigned to District Judge Anthony W. Ishii and Magistrate Judge Barbara A. McAuliffe. The new case no. is: 1:17-cv-0873-AWI-BAM. Referred to Judge Ishii. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RONALD LEE CANADA, 11 Plaintiff, 12 v. 13 NIEBERT, et al, 14 Defendants. 15 Case No. 1:17-cv-00873-BAM (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF Nos. 24, 26) 16 FOURTEEN (14) DAY DEADLINE 17 Plaintiff Ronald Lee Canada (“Plaintiff”) is a state prisoner proceeding pro se in this civil 18 19 rights action pursuant to 42 U.S.C. § 1983. This action was initiated on June 23, 2017. (ECF No. 20 1.) 21 Plaintiff filed a first amended complaint on November 27, 2017. (ECF No. 24.) On 22 November 29, 2017, the Court issued an order requiring Plaintiff to show cause why this action 23 should not be dismissed, without prejudice, for failure to exhaust his administrative remedies 24 prior to filing this action. The Court ordered Plaintiff to respond within twenty-one days 25 following service. (ECF No. 26.) On December 13, 2017, Plaintiff filed his response to the show 26 cause order. (ECF No. 27.) 27 The Court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 1 1 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 2 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 3 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. 4 § 1915(e)(2)(B)(ii). 5 Pursuant to the Prison Litigation Reform Act of 1996, “[n]o action shall be brought with 6 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 7 confined in any jail, prison, or other correctional facility until such administrative remedies as are 8 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 9 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney 10 v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002). Exhaustion is required regardless of the 11 relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 12 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison 13 life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 14 Plaintiff’s first amended complaint concedes that while he filed a grievance, his appeal is 15 pending at the third level. (ECF No. 24, p. 8.) In addition, Plaintiff’s response fails to allege any 16 facts suggesting that he has completed the grievance process, and Plaintiff fails to present any 17 argument demonstrating that he should be excused from the exhaustion requirement. Plaintiff 18 merely explains the steps he is currently taking to complete the process, but it is clear that he has 19 not yet exhausted his administrative remedies. (ECF No. 27.) Thus, it appears Plaintiff filed suit 20 prematurely without first exhausting his administrative remedies in compliance with section 21 1997e(a). 22 In rare cases where a failure to exhaust is clear from the face of the complaint, it may be 23 dismissed for failure to state a claim. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 24 2014); Medina v. Sacramento Cty. Sheriff’s Dep’t, No. 2:16-cv-0765 AC P, 2016 WL 6038181, 25 at *3 (E.D. Cal. Oct. 14, 2016) (“When it is clear from the face of the complaint and any attached 26 exhibits that a plaintiff did not exhaust his available administrative remedies before commencing 27 an action, the action may be dismissed on screening for failure to state a claim.”); Lucas v. Dir. of 28 Dep’t. of Corrs., 2015 WL 1014037, at *4 (E.D. Cal. Mar. 6, 2015) (relying on Albino and 2 1 dismissing complaint without prejudice on screening due to plaintiff’s failure to exhaust 2 administrative remedies prior to filing suit). 3 4 5 6 7 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a district judge to this action. Furthermore, it is HEREBY RECOMMENDED that this action be dismissed, without prejudice, based on Plaintiff’s failure to exhaust administrative remedies prior to filing suit. These findings and recommendations will be submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 9 (14) days after being served with these findings and recommendations, Plaintiff may file written 10 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 11 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 12 specified time may result in the waiver of the “right to challenge the magistrate’s factual 13 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 14 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 17 IT IS SO ORDERED. Dated: /s/ Barbara December 18, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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