(PC) Hoffmann v. Pulido, et al., No. 1:2018cv00078 - Document 11 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Dismissal of 1 Action, Without Prejudice, for Failure to Exhaust Administrative Remedies; Fourteen (14) Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 5/25/2018. Referred to Judge Lawrence J. O'Neill. (Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KASEY F. HOFFMANN, 11 Plaintiff, 12 v. 13 Case No. 1:18-cv-00078-LJO-BAM (PC) FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES L. PULIDO, et al, 14 (ECF Nos. 24, 26) Defendants. FOURTEEN (14) DAY DEADLINE 15 16 Plaintiff Kasey F. Hoffmann (“Plaintiff”) is a state prisoner proceeding pro se in this civil 17 rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint, filed on January 17, 2018, is 18 currently before the Court for screening. (ECF No. 1.) 19 The Court is required to screen complaints brought by prisoners seeking relief against a 20 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 21 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 22 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 23 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. 24 § 1915(e)(2)(B)(ii). 25 Pursuant to the Prison Litigation Reform Act of 1996, “[n]o action shall be brought with 26 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 27 confined in any jail, prison, or other correctional facility until such administrative remedies as are 28 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 1 1 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney 2 v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002). Exhaustion is required regardless of the 3 relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 4 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison 5 life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 6 Plaintiff admits in his complaint that he did not submit an administrative grievance for any 7 of the claims in this action, believing that he was not required to do so. (ECF No. 1 at pp. 3, 4 8 and 5.) Despite Plaintiff’s assertion to the contrary, Plaintiff was required to submit a grievance 9 and exhaust his administrative remedies regarding the claims at issue in this action, which include 10 asserted violations of Equal Protection and Due Process, along with violations of the Eighth and 11 First Amendments. Thus, it appears clearly on the face of the complaint that Plaintiff filed suit 12 prematurely without first exhausting his administrative remedies in compliance with section 13 1997e(a). 14 In rare cases where a failure to exhaust is clear from the face of the complaint, it may be 15 dismissed for failure to state a claim. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 16 2014); Medina v. Sacramento Cty. Sheriff’s Dep’t, No. 2:16-cv-0765 AC P, 2016 WL 6038181, 17 at *3 (E.D. Cal. Oct. 14, 2016) (“When it is clear from the face of the complaint and any attached 18 exhibits that a plaintiff did not exhaust his available administrative remedies before commencing 19 an action, the action may be dismissed on screening for failure to state a claim.”); Lucas v. Dir. of 20 Dep’t. of Corrs., No: 2:14-cv-0590 DAD P, 2015 WL 1014037, at *4 (E.D. Cal. Mar. 6, 2015) 21 (relying on Albino and dismissing complaint without prejudice on screening due to plaintiff’s 22 failure to exhaust administrative remedies prior to filing suit). 23 24 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, without prejudice, based on Plaintiff’s failure to exhaust administrative remedies prior to filing suit. 25 These findings and recommendations will be submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 27 (14) days after being served with these findings and recommendations, Plaintiff may file written 28 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 2 1 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 2 specified time may result in the waiver of the “right to challenge the magistrate’s factual 3 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 4 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 7 IT IS SO ORDERED. Dated: /s/ Barbara May 25, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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