1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEY BLAKENEY, No. 2: 20-cv-1270 KJN P 12 Plaintiff, 13 v. ORDER 14 RIO CONSUMNES CORRECTIONAL

CENTER,

15 Defendant. 16 17

18 19 Plaintiff is a prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 20 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 21 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 22 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 23 Accordingly, the request to proceed in forma pauperis is granted. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 25 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 27 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 28 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 1 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 2 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 3 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 4 § 1915(b)(2). 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 26 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 27 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 1 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 3 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 4 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 5 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

6 The only named defendant is the Rio Consumes Correctional Center. Plaintiff alleges, 7 This lawsuit is to reference COVID-19 and that the CDC recommendations are not being met. There is no social distancing, 8 mask, unsanitary environment and I’m innocent [un]til proven guilty. My claim does not meet [sic] a death sentence without any medical 9 testing being done. Violation of Constitution article 1-6 are being violated especially the 8-14 Amendment with due process of law 10 subjecting them to cruel and unusual punishment. 11 (ECF No. 1 at 3.) 12 Plaintiff seeks money damages and his release from custody. (Id.) Plaintiff concedes that 13 he has not exhausted administrative remedies. (Id. at 2.) 14 Plaintiff cannot pursue a claim in this court that he has not exhausted through an inmate 15 appeal procedure that is available at his place of incarceration. See 42 U.S.C. § 1997e(a) (“No 16 action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other 17 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 18 administrative remedies as are available are exhausted.”). 19 Although exhaustion is not required “when circumstances render administrative remedies 20 ‘effectively unavailable,’” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (citation omitted), 21 the Ninth Circuit requires “a good-faith effort on the part of inmates to exhaust a prison’s 22 administrative remedies as a prerequisite to finding remedies effectively unavailable,” Albino v. 23 Baca, 697 F.3d 1023, 1035 (9th Cir. 2012). The exhaustion requirement accords prisoners the 24 possibility of obtaining more immediate and effective relief. The requirement provides an 25 opportunity for correctional officials to address complaints internally, thereby deterring frivolous 26 lawsuits and creating an administrative record should the matter later proceed to court. See Porter 27 v. Nussle, 534 U.S. 516, 525 (2002). “The primary purpose of a grievance...is to alert the prison 28 to a problem and facilitate its resolution, not to lay groundwork for litigation.” Griffin v. Arpaio, wOASe 2 EVMEOEUING IN REVUE OPI ee AY Tt

1 | 557 F.3d 1117, 1120 (9th Cir. 2009). 2 Accordingly, plaintiff is ordered to show cause why this action should not be dismissed 3 | for his failure to exhaust administrative remedies prior to filing this action. 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. Plaintiffs request for leave to proceed in forma pauperis is granted. 6 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 7 | 1s assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 8 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 9 | Sacramento County Sheriff filed concurrently herewith. 10 3. Within thirty days of the date of this order, plaintiff shall show cause why this action 11 | should not be dismissed for his failure to exhaust administrative remedies. 12 | Dated: July 13, 2020 3 A Abar 14 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

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