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6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE TERRELL GRANT, Case No. 2:21-cv-0628-JDP (PC)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S

APPLICATION TO PROCEED IN FORMA

13 v. PAUPERIS 14 COUNTY OF SACRAMENTO, ECF No. 2 15 Defendant. FINDINGS AND RECOMMENDATIONS

DISMISSING PLAINTIFF’S COMPLAINT

16 WIHTOUT PREJUDICE 17 ECF No. 1 18

19 20 Plaintiff, a state prisoner at Rio Consumnes Correctional Center, proceeds without counsel 21 in this civil rights action brought under 42 U.S.C. § 1983. Additionally, plaintiff has filed an 22 application to proceed in forma pauperis (ECF No. 2) which makes the proper showing and will 23 be granted.1 Because plaintiff acknowledges that he has not completed the prison grievance 24 process, I recommend that plaintiff’s complaint be dismissed without prejudice. 25 26 27 1 Plaintiff must pay the requisite filing fee in accordance with the concurrently filed 28 collection order. 1 Screening and Pleading Requirements 2 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 3 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 4 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 5 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 6 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 7 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 8 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 9 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 10 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 12 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 13 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 14 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 15 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 16 n.2 (9th Cir. 2006) (en banc) (citations omitted). 17 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 18 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 19 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 20 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 21 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 22 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 23 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 24 Analysis 25 Plaintiff makes claims against the County of Sacramento as well as “medical staff,” 26 including an individual or individuals described as “nurse/doctor” at Rio Consumnes Correctional 27 28 1 Center (“RCCC”).2 ECF No. 1 at 2. Plaintiff states that on January 11, 2021, he dislocated his 2 finger and immediately informed staff at RCCC of his injury. Id. at 3. After 2.5 hours, he was 3 seen by a nurse, who ordered that x-rays be taken. Id. He was seen five days later by a doctor 4 who referred him to a bone specialist. Id. Plaintiff was seen seven days after the referral by a 5 specialist who informed him that too much time had passed, and the healing process was too 6 advanced for any treatment. Id. The specialist told him that he now needs surgery, and that this 7 surgery might not be successful. Id. 8 In this case, I find it appropriate to consider exhaustion. “The Prison Litigation Reform 9 Act of 1995 (PLRA) mandates that an inmate exhaust ‘such administrative remedies as are 10 available’ before bringing suit to challenge prison conditions.” Ross v. Blake, 136 S. Ct. 1850, 11 1854-55 (2016) (quoting 42 U.S.C. § 1997e(a)). The availability of administrative remedies must 12 be assessed at the time the prisoner filed his action. Andres v. Marshall, 867 F.3d 1076, 1079 13 (9th Cir. 2017). “There is no question that exhaustion is mandatory under the PLRA[.]” Jones v. 14 Bock, 549 U.S. 199, 211 (2007) (citation omitted) (cited with approval in Ross, 136 S. Ct. at 15 1856). The administrative exhaustion requirement is based on the important policy concern that 16 prison officials have “an opportunity to resolve disputes concerning the exercise of their 17 responsibilities before being haled into court.” Jones, 549 U.S. at 204. 18 Here, plaintiff states that he has not yet completed the grievance process for the claim at 19 issue. Id. at 2 (checking the box for “No” in response to the question, “Is the grievance process 20 completed”). Although dismissal of a prisoner civil rights action for failure to exhaust 21 administrative remedies must generally be decided pursuant to a motion for summary judgment, 22 see Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014), the exception is “[i]n the rare event that a 23 failure to exhaust is clear on the face of the complaint,” id. at 1166; see also Jones, 549 U.S. at 24 215 (finding dismissal appropriate when an affirmative defense appears on the face of the 25

2 Though plaintiff does not include the medical staff in his case caption, and the docket 26 does not reflect they are defendants, “a party may be properly in a case if the allegations in the 27 body of the complaint make it plain that the party is intended as a defendant.” Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1085 (9th Cir. 1983). Accordingly, the court finds 28 that the nurse and doctor are defendants in this action. 1 | complaint). This is such a case. 2 If a court concludes that a prisoner failed to exhaust his available administrative remedies 3 | before filing a civil rights action, the proper remedy is dismissal without prejudice. See Jones, 4 | 549 US. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). Accordingly, this 5 | PLRA mandate requires dismissal of this action without prejudice. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiffs application to proceed in forma pauperis (ECF No. 2) is GRANTED. 8 2. The Clerk of Court is directed to randomly assign a judge to this action. 9 Additionally, IT IS HEREBY RECOMMENDED that this action be dismissed without 10 | prejudice due to plaintiffs failure to exhaust prison administrative remedies before commencing 11 | this action. 12 These findings and recommendations are submitted to the United States District Judge 13 | assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 14 | after being served with these findings and recommendations, plaintiff may file written objections 15 | with the court. Such document should be captioned “Objections to Magistrate Judge’s Findings 16 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified 17 | time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 18 | (9th Cir. 1991). 19 29 | TPIS SO ORDERED. 21 ( i _ Dated: _ May 7, 2021 QH———

JEREMY D,. PETERSON

3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28