(PC) Kenyon D. Brown v. CDCR Director et al, No. 1:2021cv01186 - Document 19 (E.D. Cal. 2021)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to Exhaust Administrative Remedies re 13 Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Sheila K. Oberto on 12/1/2021. Referred to Unassigned DJ; Objections to F&R due within 14 days. (Rivera, O)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENYON DARRELL BROWN, Plaintiff, 12 13 14 Case No. 1:21-cv-01186-NONE-SKO (PC) FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES v. CDCR DIRECTOR, et al., 14-DAY DEADLINE 15 Defendants. 16 17 Plaintiff Kenyon Darrell Brown, a state prisoner proceeding pro se, initiated this civil 18 rights action on August 5, 2021. (Doc. 1.) In his first amended complaint, Plaintiff alleges prison 19 officials at North Kern State Prison have violated the Eighth Amendment by instituting a prison- 20 wide modified program to address the COVID-19 pandemic, even though “the coronavirus is not 21 on [Plaintiff’s] yard.” (Doc. 13.) Plaintiff attaches to his complaint a response to an administrative 22 grievance he submitted concerning his claims, which indicates that prison officials denied the 23 grievance at the first level of review on October 26, 2021. (Id. at 4-5.) It appears that Plaintiff has 24 not appealed the decision to the California Department of Corrections and Rehabilitation (CDCR) 25 Office of Appeals, which the denial letter instructs him to do. (Id. at 5.) If he did appeal the 26 decision, it is apparent that he has not yet received a response from the CDCR Office of Appeals. 27 28 Therefore, on November 19, 2021, the Court issued an order to show cause why this action should not be dismissed for Plaintiff’s failure to exhaust. (Doc. 17.) Plaintiff filed a 1 response to the order on November 29, 2021. (Doc. 18.) In his response, Plaintiff contends that he 2 “exhausted administrative remedies when . . . [he] received a letter from the warden . . . denying 3 [his] complaint.” (Id. at 1.) Plaintiff attaches the letter to his response. (Id. at 2.) The letter is 4 indeed from the warden of North Kern State Prison, but it is a response to a letter sent by Plaintiff 5 to the warden, not to any administrative grievance. In fact, the letter specifically instructs Plaintiff 6 “to utilize the existing administrative remedy by submitting a CDCR 602,” or, if he has “already 7 filed a CDCR-602 form,” “to contact the respective responder in regards to [his] grievance.” (Id.) 8 As described above, Plaintiff did file a grievance, but it is apparent that he has not yet received a 9 disposition from the CDCR Office of Appeals. 10 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 11 respect to prison conditions under . . . any other Federal law . . . by a prisoner confined in any jail, 12 prison, or other correctional facility until such administrative remedies as are available are 13 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 14 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 15 omitted). Exhaustion must be completed before the filing of a complaint; it cannot be completed 16 during the pendency of a lawsuit. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The 17 exhaustion requirement applies to all inmate suits relating to prison life, Porter v. Nussle, 534 18 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 19 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 20 Inmates are required to “complete the administrative review process in accordance with 21 the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 22 court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). In California, state-inmate grievances 23 regarding non-healthcare matters are subject to two levels of review. See Cal. Code Regs. tit. 15, 24 § 3481(a). In general, prisoners must receive a disposition from the CDCR Office of Appeals 25 before administrative remedies are deemed exhausted. See id. §§ 3483(m)(1), 3486(m); but see id. 26 § 3483(m)(2). 27 28 Failure to exhaust is generally an affirmative defense that the defendant must plead and prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is 2 1 clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 2 It is clear on the face of his complaint that Plaintiff failed to exhaust administrative 3 remedies prior to filing suit. Accordingly, the Court RECOMMENDS that this action be 4 DISMISSED without prejudice. 5 These Findings and Recommendations will be submitted to the United States District 6 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 7 service of these Findings and Recommendations, Plaintiff may file written objections with the 8 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 9 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 10 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 11 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 13 14 15 IT IS SO ORDERED. Dated: /s/ Sheila K. Oberto December 1, 2021 . UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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