(PC) Hicks v. Sexton et al, No. 1:2018cv00764 - Document 17 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this case be Dismissed, without prejudice, for Plaintiff's failure to exhaust his available adiministratice remedies before filing suit; Clerk to Close Case ; referred to Judge O'Neill, signed by Magistrate Judge Gary S. Austin on 8/23/2018. Objections to F&R due 14-Day Deadline (Martin-Gill, S)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL J. HICKS, 12 Plaintiff, 13 14 vs. M. V. SEXTON, et al., 15 Defendants. 1:18-cv-00764-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST REMEDIES BEFORE FILING SUIT (ECF No. 1.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 17 18 I. BACKGROUND 19 Michael J. Hicks (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On June 5, 2018, Plaintiff 21 filed the Complaint commencing this action. (ECF No. 1.) 22 On August 20, 2018, Plaintiff filed a request for the court to change the filing date of 23 the Complaint because he did not exhaust his administrative remedies until July 13, 2018. 24 (ECF No. 15.) On August 21, 2018, the court issued an order denying the request. (ECF No. 25 16.) 26 II. EXHAUSTION OF REMEDIES 27 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 28 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 1 1 confined in any jail, prison, or other correctional facility until such administrative remedies as 2 are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the 3 available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 4 S.Ct. 910 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion 5 is required regardless of the relief sought by the prisoner and regardless of the relief offered by 6 the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion 7 requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 8 S.Ct. 983 (2002). 9 A prisoner may be excused from complying with the PLRA’s exhaustion requirement if 10 he establishes that the existing administrative remedies were effectively unavailable to him. See 11 Albino v. Baca, 747 F.3d 1162, 1172-73 (9th Cir. 2014). When an inmate’s administrative 12 grievance is improperly rejected on procedural grounds, exhaustion may be excused as 13 “effectively unavailable.” Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010); see also Nunez 14 v. Duncan, 591 F.3d 1217, 1224–26 (9th Cir. 2010) (warden’s mistake rendered prisoner’s 15 administrative remedies “effectively unavailable”); Ward v. Chavez, 678 F.3d 1042, 1044-45 16 (9th Cir. 2012) (exhaustion excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 17 2005) (plaintiff not required to proceed to third level where appeal granted at second level and 18 no further relief was available); Marella v. Terhune, 568 F.3d 1024 (9th Cir. 2009) (excusing 19 an inmate’s failure to exhaust because he did not have access to the necessary grievance forms 20 to timely file his grievance). 21 “A prisoner’s concession to nonexhaustion is a valid ground for dismissal. . . .”) Wyatt 22 v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (overruled on other grounds by Albino, 747 23 F.3d at 1168-69); see also Salas v. Tillman, 162 Fed.App’x. 918 (11th Cir. 2006) (sua sponte 24 dismissal of prisoner’s civil rights claims for failure to exhaust was not abuse of discretion; 25 prisoner did not dispute that he timely failed to pursue his administrative remedies, and a 26 continuance would not permit exhaustion because any grievance would be untimely). In his 27 request filed on August 20, 2018, Plaintiff conceded that he did not exhaust his administrate 28 2 1 remedies for the claims in this case before filing suit. Therefore, it appears clear that Plaintiff 2 filed suit prematurely, and in such instances, the case may be dismissed. 3 III. 4 5 CONCLUSION AND RECOMMENDATIONS The court finds that Plaintiff has conceded to his failure to exhaust his administrative remedies before filing suit, pursuant to the Prison Litigation Reform Act of 1995. 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. 8 9 This case be DISMISSED, without prejudice, for Plaintiff’s failure to exhaust his available administrative remedies before filing suit; and 2. The Clerk be directed to CLOSE this case. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within fourteen 12 (14) days after the date of service of these findings and recommendations, Plaintiff may file 13 written objections with the court. 14 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 15 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 16 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 17 (9th Cir. 1991)). Such a document should be captioned “Objections to 18 19 20 21 IT IS SO ORDERED. Dated: August 23, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.