United States District Court, E.D. California
ORDER FOR PLAINTIFF TO SHOW CAUSE WHY THIS ACTION
SHOULD NOT BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO
Paul Smith (“Plaintiff”) is a state prisoner
proceeding pro se in this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff filed the
complaint commencing this action on May 14, 2019. (ECF No.
1.) Plaintiff filed a First Amended Complaint on June 10,
2019. (ECF No. 6.)
appears from the face of the First Amended Complaint that
Plaintiff did not exhaust his available administrative
remedies before filing this action. Plaintiff appears to
admit that the grievance process was available to him, but
that he did not complete the process. (ECF No. 6, p. 2.)
the Court will order Plaintiff to file a response within
thirty days, explaining why this action should not be
dismissed for failure to exhaust available administrative
remedies. Such a dismissal would be without prejudice, so
that Plaintiff may be able to refile the action after
exhausting administrative remedies, to the extent those
remedies are still available to him.
California prison grievance system has three levels of
review; an inmate exhausts administrative remedies by
obtaining a decision at each level." Reyes v.
Smith, 810 F.3d 654, 657 (9th Cir. 2016) (citing Cal.
Code Regs. tit. 15, § 3084.1(b) (2011) & Harvey
v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010)). See
also Cal. Code Regs. tit. 15, § 3084.7(d)(3)
("The third level review constitutes the decision of the
Secretary of the California Department of Corrections and
Rehabilitation on an appeal, and shall be conducted by a
designated representative under the supervision of the third
level Appeals Chief or equivalent. The third level of review
exhausts administrative remedies....").
1997e(a) of the Prison Litigation Reform Act of 1995
("PLRA") provides 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).
are required to exhaust the available administrative remedies
prior to filing suit. Jones v. Bock, 549 U.S. 199,
211 (2007); McKinney v. Carey. 311 F.3d 1198.
1199-1201 (9th Cir. 2002) (per curiam). The exhaustion
requirement applies to all prisoner suits relating to prison
life. Porter v. Nussle, 534 U.S. 516, 532 (2002).
Exhaustion is required regardless of the relief sought by the
prisoner and regardless of the relief offered by the process,
unless "the relevant administrative procedure lacks
authority to provide any relief or to take any action
whatsoever in response to a complaint." Booth v.
Churner, 532 U.S. 731, 736, 741 (2001); Ross v.
Blake, 136 S.Ct. 1850, 1857, 1859 (2016).
the PLRA, a grievance suffices if it alerts the prison to the
nature of the wrong for which redress is sought. The
grievance need not include legal terminology or legal
theories, because [t]he primary purpose of a grievance is to
alert the prison to a problem and facilitate its resolution,
not to lay groundwork for litigation. The grievance process
is only required to alert prison officials to a problem, not
to provide personal notice to a particular official that he
may be sued." Reyes, 810 F.3d at 659
(alteration in original) (citations and internal quotation
discussed in Ross, 136 S.Ct. at 1862, there are no
“special circumstances” exceptions to the
exhaustion requirement. The one significant qualifier is that
“the remedies must indeed be ‘available' to
the prisoner.” Id. at 1856. The Ross
Court described this qualification as follows:
[A]n administrative procedure is unavailable when (despite
what regulations or guidance materials may promise) it
operates as a simple dead end-with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates. See 532 U.S., at 736, 738, 121 S.Ct. 1819. . . .
Next, an administrative scheme might be so opaque that it
becomes, practically speaking, incapable of use. . . .
And finally, the same is true when prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation. . .
. As all those courts have recognized, such interference with
an inmate's pursuit of relief renders the administrative
process unavailable. And then, once again, § 1997e(a)
poses no bar.
Id. at 1859-60.
prison officials improperly fail to process a prisoner's
grievance, the prisoner is deemed to have exhausted available
administrative remedies.” Andre ...