1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN MARCUS ZINMAN, Case No. 1:24-cv-01320-CDB (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DISMISS ACTION WITHOUT PREJUDICE FOR

13 v. PLAINTIFF’S FAILURE TO EXHAUST

ADMINISTRATIVE REMEDIES

14 R. COGBURN,

ORDER DISCHARGING ORDER TO SHOW

15 Defendant. CAUSE

16 (Docs. 3, 4, 5)

17 Clerk of the Court to Assign District Judge

18 14-DAY OBJECTION PERIOD 19 20 Plaintiff Justin Marcus Zinman is a state prisoner proceeding pro se in this civil rights action 21 pursuant to 42 U.S.C. § 1983. 22 I. RELEVANT PROCEDURAL BACKGROUND 23 Plaintiff initiated this action with the filing of a complaint on October 28, 2024. (Doc. 1). 24 A brief review of the complaint reveals the incident giving rise to Plaintiff’s claims occurred on 25 September 27, 2024. (Id. at 7). In his complaint, Plaintiff attests that his “claims have not been 26 formally exhausted because . . .there is no form of administrative relief possible in this matter[,] 27 [Plaintiff] personally attempted to resolve this situation twice which proved to be the most amount 28 of due diligence possible outside of Court[, and] this situation involves the threat of imminent health 1 complications to [Plaintiff].” (Id. at 1:23–29). Nevertheless, Plaintiff has not shown he has 2 exhausted his administrative remedies between September 27, 2024—the date of the subject 3 incident—and October 28, 2024, the date he filed his complaint. 4 On November 6, 2024, the undersigned issued an Order to Show Cause (OSC) Why Action 5 Should Not Be Dismissed for Failure to Exhaust Administrative Remedies. (Doc. 3). Plaintiff was 6 afforded 30 days within which to respond to the OSC, or in the alternative, file a notice of voluntary 7 dismissal. (Id.). On November 21, 2024, Plaintiff responded to the OSC and stated that “by 8 mistake, [he] thought that the express threat of imminent serious injury/death [of blood pouring 9 from his ear after a rotten tooth infection] constituted a legitimate reason to avoid § 1997e 10 exhaustion requirements.” (Doc. 5 p. 1). Plaintiff concedes that he is not “actually in danger, . . . 11 just predictably/politically threatened by it” due to California Correctional Health Care System’s 12 (“CCHCS”) policy when patients refuse healthcare service. (Id.). Plaintiff argues that “this case 13 should remain open” despite his failure to exhaust administrative remedies because he has filed a 14 healthcare grievance form on November 17, 2024, and the “case [should] remain open for at least” 15 until the “grievance process [is exhausted] within the 45 days allotted for Plaintiff’s time to pay[.]” 16 (Id. at 2); see (Doc. 3 p. 3). Additionally, should the Court grant Plaintiff’s request therein to allow 17 him to amend the complaint, Plaintiff argues the case should remain open as the amended complaint 18 “would be postured more like a Monell claim” and “[t]hus the action would not be subject to 19 exhaustion requirements.” (Id.). 20 II. EXHAUSTION REQUIREMENTS 21 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought 22 with respect to prison conditions under . . . any other Federal law . . . by a prisoner confined in any 23 jail, prison, or other correctional facility until such administrative remedies as are available are 24 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 25 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 26 omitted). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 27 Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 28 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 1 Inmates are required to “complete the administrative review process in accordance with the 2 applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.” 3 Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). In California, state-inmate grievances are subject to 4 two levels of review. See Cal. Code Regs. tit. 15, §§ 3481(a), 3999.226(a)(1). Prisoners must 5 generally receive a disposition from the second level of review before administrative remedies are 6 deemed exhausted. See id. §§ 3483(m)(1), 3486(m), 3999.226(h); but see id. § 3483(m)(2). 7 In general, failure to exhaust is an affirmative defense that the defendant must plead and 8 prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is 9 clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014); see 10 Meador v. Pleasant Valley State Prison, 333 Fed. Appx. 177, 178 (9th Cir. 2009) (“Sua sponte 11 dismissal for failure to exhaust administrative remedies under the PLRA is only appropriate if, 12 taking the prisoner’s factual allegations as true, the complaint establishes his failure to exhaust and, 13 thus, fails to state a claim upon which relief can be granted.”) (citing Jones v. Bock, 549 U.S. 199, 14 214-15 (2007)) (unpublished). 15 III. DISCUSSION 16 It is clear on the face of Plaintiff’s complaint and response to the OSC that Plaintiff failed 17 to exhaust administrative remedies prior to filing suit. Although Plaintiff asserts that “no form of 18 administrative relief [is] possible in this matter[,]” (Doc. 1 ¶ 6), that is not a proper basis to fail to 19 pursue administrative remedies. (Doc. 3 p. 2). Nor is Plaintiff’s mistaken belief that he faced an 20 express threat of imminent serious injury or death an excepted basis from the exhaustion 21 requirement. Wilkins v. Correctional Officers, No. No. CV 21-3383-VAP(E), 2022 WL 3206422 22 at *7 (C.D. Cal. July 13, 2022) (“The PLRA’s exhaustion provision contains no such express 23 ‘imminent danger’ exception.”). Indeed, Plaintiff’s filing of a healthcare grievance form on 24 November 17, 2024, and request that the case not be dismissed until the “grievance process [is 25 exhausted] within the 45 days allotted for Plaintiff’s time to pay” corroborate what is plain from 26 the face of Plaintiff’s complaint – he dd not attempt to exhaust, nor has he completed exhaustion, 27 of administrative remedies prior to filing suit. Accordingly, the Court recommends dismissal of 28 this action without prejudice to Plaintiff’s refiling once his claims are exhausted. Baca, 747 F.3d 1 at 1166; see 42 U.S.C. 1997e(a). 2 IV. CONCLUSION AND RECOMMENDATION 3 Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a 4 district judge to this action. > For Plaintiff's prompt response (Doc. 5) to the Court’s order to show cause, the order to 6 show cause dated November 7, 2024 (Doc. 3) is HEREBY DISCHARGED. 7 Furthermore, the undersigned HEREBY RECOMMENDS that the action be dismissed, 8 | without prejudice, based on Plaintiffs failure to exhaust his administrative remedies as required by | the PLRA as is clear on the face of his complaint. 10 These Findings and Recommendations will be submitted to the United States District Judge 11 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days after 12 | being served with a copy of these Findings and Recommendations, a party may file written 13 | objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 14 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without leave 15 | of Court and good cause shown. The Court will not consider exhibits attached to the Objections. 16 | To the extent a party wishes to refer to any exhibit(s), the party should reference the exhibit in the 17 | record by its CM/ECF document and page number, when possible, or otherwise reference the 18 || exhibit with specificity. Any pages filed in excess of the 15-page limitation may be disregarded 19 | by the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 20 | 636(b)(1)(C). A party’s failure to file any objections within the specified time may result in the 21 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 22 | ITIS SOORDERED. 23 Dated: _ December 3, 2024 | ) Ww VV KD 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28