Nguyen v. Biter et al

Filing 46

ORDER DENYING Motion to Relieve Plaintiff From Exhaustion Requirement, and DENYING Motion for Extension of Time to Amend as Premature 44 , 45 , signed by Magistrate Judge Sheila K. Oberto on 12/23/11. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY NGUYEN,

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CASE NO. 1:11-cv-00809-AWI-SKO PC

Plaintiff,

ORDER DENYING MOTION TO RELIEVE
PLAINTIFF FROM EXHAUSTION
REQUIREMENT, AND DENYING MOTION
FOR EXTENSION OF TIME TO AMEND AS
PREMATURE

v.
M. D. BITER,
Defendant.

(Docs. 44 and 45)
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Plaintiff Anthony Nguyen, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on May 18, 2011. On December 22, 2011, Plaintiff

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filed a motion seeking to be excused from exhausting by the Court and a motion seeking an

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extension of time to amend.

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Plaintiff is required to exhaust his claims via the prison’s grievance process prior to filing

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suit, and he may not seek to be excepted from this requirement by the Court, pre-litigation, so that

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he may add unexhausted claims to his complaint. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S.

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199, 211, 127 S.Ct. 910 (2007); Porter v. Nussle, 435 U.S. 516, 524, 122 S.Ct. 983 (2002).

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Accordingly, Plaintiff’s motion is denied.

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Regarding Plaintiff’s intent to amend, in as much as Plaintiff is expressing an intent to amend

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to add new parties and new claims which have not been exhausted, Plaintiff is warned that in

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addition to the exhaustion requirement, he also may not add unrelated claims against unrelated

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parties to this action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir.

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2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Any unrelated claims against unrelated
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parties will be dismissed from this action for improper joinder, should they be included in Plaintiff’s

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amended complaint. 28 U.S.C. § 1915A.

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Additionally, Plaintiff was granted a thirty-day extension of time within which to amend on

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December 13, 2011. Therefore, Plaintiff’s motion seeking an additional extension is premature and

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is denied.

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For the reasons set forth herein, Plaintiff’s motion seeking to be excused from exhausting and
Plaintiff’s motion for another extension of time to amend are HEREBY DENIED.

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IT IS SO ORDERED.
Dated:
i0d3h8

December 23, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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