(PC) Sanchez v. Eaton

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA — 10 — 11 GABRIEL CHARLES SANCHEZ, Case No. 1:21-cv-00736-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO 13 v. EXHAUST ADMINISTRATIVE REMEDIES 14 PATRICK EATON, et al., 14-DAY DEADLINE 15 Defendants. Clerk of the Court to Assign a District Judge — 16 — 17 Gabriel Charles Sanchez, a state prisoner, alleges the defendants were deliberately 18 indifferent to his health or safety. (Doc. 1.) In his complaint, Plaintiff indicates that he has not 19 filed an administrative grievance regarding his claims. (Id. at 3, 4.) Therefore, on September 7, 20 2021, the Court issued an order to show cause, within 21 days, why this action should not be 21 dismissed for failure to exhaust administrative remedies prior to filing suit. (Doc. 6.) Although 22 more than 21 days have passed, Plaintiff has failed to respond to the order to show cause. 23 The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect 24 to prison conditions under . . . any . . . Federal law . . . by a prisoner confined in any jail, prison, 25 or other correctional facility until such administrative remedies as are available are exhausted.” 26 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and “unexhausted 27 claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation omitted). The 28 exhaustion requirement applies to all inmate suits relating to prison life, Porter v. Nussle, 534 1 U.S. 516 , 532 (2002), regardless of the relief sought by the prisoner or offered by the 2 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). Inmates are required to 3 “complete the administrative review process in accordance with the applicable procedural rules, 4 including deadlines, as a precondition to bringing suit in federal court.” Woodford v. Ngo, 548 5 U.S. 81, 88, 93 (2006). Generally, failure to exhaust is an affirmative defense that the defendant 6 must plead and prove. Jones, 549 U.S. at 204, 216 . However, courts may dismiss a claim if 7 failure to exhaust is clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162 , 1166 8 (9th Cir. 2014). 9 It is clear on the face of his complaint that Plaintiff failed to exhaust administrative 10 remedies prior to filing suit. Accordingly, the Court RECOMMENDS that this action be 11 DISMISSED without prejudice. The Court DIRECTS the Clerk of the Court to assign a district 12 judge to this action. 13 These Findings and Recommendations will be submitted to the United States District 14 Judge assigned to this case, pursuant to 28 U.S.C. § 636 (b)(l). Within 14 days of the date of 15 service of these Findings and Recommendations, Plaintiff may file written objections with the 16 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 17 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 18 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 19 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). — 20 — IT IS SO ORDERED. — 21 — 22 Dated: October 14, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —