United States District Court, E.D. California
ORDER TO SHOW CAUSE
KENDALL J. NEWMAN, United States Magistrate Judge
is a state prisoner, proceeding without counsel. On October
12, 2017, plaintiff filed a civil rights complaint, pursuant
to 42 U.S.C. § 1983. Plaintiff alleges that on October
9, 2017, defendant told plaintiff to drop his lawsuits
against Diaz' supervisor, or Diaz would tell corrections
staff that plaintiff threatened Diaz and corrections staff
would put plaintiff in lock-up. (ECF No. 1 at 3.) Plaintiff
seeks money damages. Plaintiff concedes that there is an
administrative appeal process at his prison, and did not
exhaust his administrative remedies because Diaz allegedly
told plaintiff that if he files an appeal, Diaz would tell
the appeal staff to put it in the trash can. (ECF No. 1 at
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
Prison Litigation Reform Act of 1995 (“PLRA”)
amended 42 U.S.C. § 1997e to provide that “[n]o
action shall be brought with respect to prison conditions
under [42 U.S.C. § 1983], or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion
in prisoner cases covered by § 1997e(a) is mandatory.
Porter v. Nussle, 534 U.S. 516, 524 (2002).
Exhaustion is a prerequisite for all prisoner suits regarding
conditions of confinement, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong. Porter, 534
U.S. at 532. In other words, prisoners are required to
exhaust available remedies prior to filing suit. Jones v.
Bock, 549 U.S. 199, 211 (2007).
exhaustion of available remedies is mandatory. Booth v.
Churner, 532 U.S. 731, 741 (2001). “Proper
exhaustion demands compliance with an agency's deadlines
and other critical procedural rules.” Woodford v.
Ngo, 548 U.S. 81, 95-96 (2006). The administrative
process is exhausted only after the inmate complies with all
relevant prison grievance procedures and receives a decision
from the third level. Ngo, 548 U.S. at 95-96.
Administrative Appeal Process
California Department of Corrections and Rehabilitation
(“CDCR”) provides inmates the right to appeal
administratively “any policy, decision, action,
condition, or omission by the department or its staff that
the inmate or parolee can demonstrate as having a material
adverse effect upon his or her health, safety, or
welfare.” Cal. Code Regs. tit. 15, § 3084.1(a).
Following amendments that took effect January 28, 2011,
California prisoners are required to proceed through three
levels of appeal to exhaust the administrative appeal
process: (1) formal written appeal on a CDC 602 inmate appeal
form, (2) second level appeal to the institution head or
designee, and (3) third level appeal to the Director of the
CDCR. See 15 Cal. Code Regs. §
3084.1-3084.9. A final decision from the Director's
level of review satisfies the exhaustion requirement under 42
U.S.C. § 1997e(a). See Lira v. Herrera, 427
F.3d 1164, 1166-67 (9th Cir. 2005); see also Cal.
Code Regs. tit. 15, § 3084.7(d)(3) (as amended Dec. 13,
2010). Appeals must be filed within thirty days from the
Has Plaintiff Exhausted?
concedes he did not file an administrative appeal as to his
claims against defendant Diaz. Plaintiff claims defendant
Diaz threatened to tell appeal staff to put plaintiff's
appeal in the trash if plaintiff filed such
sponte dismissal for failure to exhaust administrative
remedies under the PLRA is appropriate if, taking the
prisoner's factual allegations as true, the complaint
establishes his failure to exhaust. See Jones, 549
U.S. at 214-15 (exhaustion is an affirmative defense and
sua sponte dismissal for failure to exhaust
administrative remedies under the PLRA is only appropriate
if, taking the prisoner's factual allegations as true,
the complaint establishes his failure to exhaust); 28 U.S.C.
§ 1915A(b)(1); Bennett v. King, 293 F.3d 1096,
1098 (9th Cir. 2002) (affirming district court's sua
sponte dismissal of prisoner's complaint because he
failed to exhaust his administrative remedies).
records reflect that plaintiff is well aware that he is
required to exhaust his administrative remedies before he
files a complaint in federal court. Herrera v. Gardner,
Lee & Borsch, Case No. 2:10-cv-1744 GEB EFB (E.D.
Cal.) (dismissed on May 10, 2012, based on plaintiff's
failure to exhaust administrative remedies prior to filing
the action). As plaintiff knows, the CDCR provides an inmate
grievance procedure. Plaintiff is reminded that he is
required to exhaust his administrative remedies
before he files a complaint in federal court.
Defendant Diaz apparently works in the library, and even if
she were to tell appeals staff to put plaintiffs appeal in
the trash, it is unclear appeals staff would do so. In any
event, plaintiff must first attempt to exhaust his
administrative appeals. If appeals staff fail to accept or
respond to plaintiffs administrative appeals, plaintiff may
then assert ...