United States District Court, C.D. California
Mark P. Gansert
Orange County, California, et al.
Present The Honorable John D. Early, United States Magistrate
CIVIL MINUTES - GENERAL
(In Chambers) Order to Show Cause
October 21, 2019, Plaintiff Mark P. Gansert
(“Plaintiff”), who is currently incarcerated at
the Orange County Jail, Theo Lacy Facility, located in
Orange, California (the “Jail”), proceeding
pro se and seeking leave to proceed in forma
pauperis (“IFP”), filed a civil rights
complaint pursuant to 42 U.S.C. § 1983 relating to the
quality of his medical care at the Jail. Dkt. 1
(“Complaint”) at 1-4 (page references to the
Complaint herein refer to CM/ECF pagination); Dkt. 2
(“IFP Request”). The complaint form used by
Plaintiff is not the form approved for prisoner civil rights
complaints in this District.
Complaint asserts that Plaintiff has commenced the grievance
procedure that is available at the Jail, but the grievance
procedure has not been completed. Complaint at 2. The IFP
Request by Plaintiff does not include a certified copy of the
balance of his trust account, or its equivalent for the Jail,
for the prior six months.
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
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). This
statutory exhaustion requirement applies to all inmate suits
about prison life (Porter v. Nussle, 534 U.S. 516,
532 (2002)) regardless of the relief sought by the prisoner
or the relief offered by the process (Booth v.
Churner, 532 U.S. 731, 741(2001)).
exhaustion in prisoner civil rights cases is normally decided
on summary judgment except “[i]n the rare event that a
failure to exhaust is clear on the face of the
complaint.” Albino v. Baca, 747 F.3d 1162 (9th
Cir. 2014) (en banc); see also Jones v. Bock, 549
U.S. 199, 215 (2007) (exhaustion is not a pleading
requirement but an affirmative defense that, if apparent on
the face of the complaint, may support dismissal); Wyatt
v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003)
(“A prisoner's concession to nonexhaustion is a
valid ground for dismissal, so long as no exception to
exhaustion applies.”), overruled on other grounds
by Albino, 747 F.3d at 1166; Vaden v.
Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (same).
Where an unexcused failure to exhaust is apparent on the face
of the complaint, a court may dismiss an action for failure
to exhaust administrative remedies on its own motion.
Corona v. Ortiz, 2013 WL 1191833, at *4 (C.D. Cal.
Mar. 1, 2013); Bennett v. King, 293 F.3d 1096, 1098
(9th Cir. 2002).
exhaustion is normally a precondition to suit, the PLRA does
not require exhaustion “when circumstances render
administrative remedies ‘effectively
unavailable.'” Sapp v. Kimbrell, 623 F.3d
813, 824 (9th Cir. 2010). Affirmative acts by prison
officials that disrupt or prevent the exhaustion of remedies
may make administrative remedies effectively unavailable.
Nunez v. Duncan, 591 F.3d 1217, 1224-25 (9th Cir.
the face of the Complaint reflects that Plaintiff had
administrative remedies available and did not exhaust those
remedies. Complaint at 2. Absent a showing that those
remedies have been rendered effectively unavailable to
Plaintiff, the PLRA mandates dismissal of the Complaint,
without prejudice, until the grievance procedure has been
FAILURE TO SUPPORT IFP REQUEST WITH PRISON TRUST ACCOUNT
prisoner seeking to bring a civil action . . . or proceeding
without prepayment of fees . . . shall submit a certified
copy of the trust fund account statement (or institutional
equivalent) for the prisoner for the 6-month period
immediately preceding the filing of the complaint . . .
obtained from the appropriate official of each prison at
which the prisoner is or was confined.” 28 U.S.C.
§ 1915(a)(2). Here, Plaintiff's IFP Request (Dkt. 2)
did not include a certified copy of Plaintiff's prison
trust account statement for the six-month period immediately
preceding the filing of the Complaint as required by 28
U.S.C. § 1915(a)(2). The IFP Request is therefore
CONCLUSION AND ORDER
upon the foregoing, Plaintiff is therefore ORDERED to
show cause in writing within thirty (30) days from the date
of this Order why this action should not be
dismissed without prejudice pursuant to the PLRA for failure
to exhaust administrative remedies. If Plaintiff contends
that administrative remedies at the Jail were unavailable to
him because ...