Cortinas v. Scalia et al

Filing 20

ORDER DENYING 18 Motion for Leave to Amend Second Amended Complaint; ORDER DISMISSING Action, without prejudice for Plaintiff's Failure to Exhaust his Administrative Remedies, signed by Magistrate Judge Stanley A. Boone on 03/29/17. CASE CLOSED(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY WILLIAM CORTINAS,

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Plaintiff,
v.
M. HUERTA, et al.,
Defendants.

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Case No.: 1:14-cv-02015-SAB (PC)
ORDER DENYING MOTION FOR LEAVE TO
AMEND SECOND AMENDED COMPLAINT
ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, FOR PLAINTIFF’S FAILURE TO
EXHAUST HIS ADMINISTRATIVE REMEDIES
[ECF Nos. 16, 18]

Plaintiff Larry William Cortinas is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff consented to magistrate judge jurisdiction. (ECF No. 6.)

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Currently before the Court is Plaintiff’s response to the Court’s order to show cause, filed on

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September 19, 2016 (ECF No. 17), and Plaintiff’s motion for leave to amend his second amended

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complaint, filed on September 26, 2016 (ECF No. 18).

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I.

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BACKGROUND

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Plaintiff initiated this action by filing a complaint on December 18, 2014. (ECF No. 1.) The

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original complaint alleged a number of different, unrelated claims regarding events spanning several
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years. On November 10, 2015, the Court screened Plaintiff’s complaint, and dismissed it with leave to

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amend. (ECF No. 8.) Plaintiff was instructed to amend only those claims that he believed, in good

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faith, were viable and properly joined in a single action. (Id. at p. 8.)

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On December 9, 2015, Plaintiff filed a first amended complaint. (ECF No. 10.) That first

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amended complaint concerned Plaintiff’s allegations of excessive force and deliberate indifference to

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serious medical needs in violation of the Eighth Amendment, arising out of events from December 31,

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2014 through August 14, 2015. On January 20, 2016, the Court screened Plaintiff’s first amended

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complaint. (ECF No. 12.) The Court found that Plaintiff’s first amended complaint stated a claim

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against Defendants Huerta and Scalia for excessive force in violation of the Eighth Amendment

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arising out of alleged events on December 31, 2014, but stated no other cognizable claim. (Id. at p. 6.)

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Plaintiff was ordered to either file a second amended complaint to attempt to cure the deficiencies

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identified by the Court in that order, or to notify the Court of his willingness to proceed only on the

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cognizable claims in the first amended complaint. (Id.)

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On March 21, 2016, Plaintiff filed a second amended complaint, on an extension of time. (ECF

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No. 15.) This complaint concerned only the alleged December 31, 2014 uses of force by Defendants

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Huerta and Scalia.

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In both Plaintiff’s original complaint and first amended complaint, Plaintiff indicated that he

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had exhausted his available administrative remedies, but did not indicate when he did so. In the second

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amended complaint, Plaintiff alleged that he filed a grievance concerning all of the facts contained in

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the second amended complaint, and that the administrative process was completed on August 18,

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2015, after this action was commenced. Accordingly, on August 31, 2016, the Court issued an order to

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show cause why the action should not be dismissed for Plaintiff’s failure to exhaust the administrative

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remedies prior to commencing suit here. (ECF No. 16.)

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Plaintiff filed a response to the order to show cause on September 19, 2016. (ECF No. 17.)

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Plaintiff also filed a motion to amend the second amended complaint, on September 26, 2016. (ECF

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No. 18.) On January 27, 2017, Plaintiff lodged a proposed third amended complaint. (ECF No. 19.)

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II.

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DISCUSSION

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A.

Order to Show Cause

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In Plaintiff’s response to the order to show cause, he acknowledges that the events he

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complains about occurred before he filed his original complaint, and he seeks leave to file a separate

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civil action regarding the alleged uses of force. He also seeks leave to amend his complaint, stating

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that he forgot to leave in a portion of his original complaint that was integral. (ECF No. 17.)

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Pursuant to the Prison Litigation Reform Act of 1996, “[n]o action shall be brought with

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respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined

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in any jail, prison, or other correctional facility until such administrative remedies as are available are

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exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative

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remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d

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1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner

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and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and

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the exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516,

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532 (2002). Exhaustion, if feasible, should be decided before reaching the merits of a prisoner’s claim.

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Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014).
This is one of those rare cases where a failure to exhaust administrative remedies is clear on

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the face of the complaint. As stated in the order to show cause, Plaintiff indicates in his second

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amended complaint that the grievance process concerning the excessive force claim raised in this

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action was not completed until August 18, 2015, after this action was initiated. Further, he does not

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dispute this fact in his response to the order to show cause. Instead, Plaintiff contends that he brought

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this action in error, and requests leave to file a separate suit.1
Accordingly, dismissal of this action, without prejudice, for Plaintiff’s failure to exhaust his

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available administrative remedies prior to filing suit is warranted.

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The Court notes that after filing his response, Plaintiff has in fact already filed a new lawsuit concerning these
excessive force allegations. See Cortinas v. Huerta, et al., No. 1:17-cv-00130-GSA (E.D. Cal. Jan. 30, 2017.)
See also Fed. R. of Evid. 201 (court may take judicial notice of publically-available federal dockets and filings).

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B.

Motion For Leave to Amend

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As noted above, Plaintiff’s response to the order to show cause also discussed that he would

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seek further leave to amend his complaint. In his separate motion for leave to amend, Plaintiff states

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that he had previously amended his complaint, which lead to the exhaustion issue, but that he made an

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error, and misunderstood what happened to the previous complaint’s information. He seeks leave to

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amend to assert new allegations.

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Plaintiff has also lodged a proposed third amended complaint, which concerns events at

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California State Prison, Cocoran, and names as Defendants Correctional Officer Joe Scalia,

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Correctional Lieutenant R. Ruiz, and Correctional Sergeant A. Randolph, who are employed there. In

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summary, the third amended complaint alleges that from August 13, 2013 until September 2015,

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Plaintiff was forced to breathe in dusty air that contained Valley Fever spores, and that he has suffered

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rashes, sores, a nose full of mucus, and weaker vision. Plaintiff further alleges that he advised Officer

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Scalia, Lieutenant Ruiz, and Sergeant Randolph about dust build-up on mental health interview cages,

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but his complaints were ignored, and that he was treated repeatedly for illness caused by the dusty air.

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Plaintiff’s original complaint brought allegations of exposure to dust and dirt containing fungal

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spores that cause Valley Fever, exposure to dirty treatment cages in the mental health unit of the

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medical clinic, and symptoms such as sinus infections, skin rashes, and weakened eyesight. The

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relevant Eighth Amendment standards to state a claim for deliberate indifference to serious medical

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needs or based upon unconstitutional conditions of confinement, were provided to Plaintiff in the

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Court’s November 10, 2015 screening order. An explanation was also provided to Plaintiff of the

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reasons why he failed to state any claim based on his allegations.

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Likewise, Plaintiff’s proposed third amended complaint does not state any claim against

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Officer Scalia, Lieutenant Ruiz, or Sergeant Randolph for any violation of the Eighth Amendment,

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even when liberally construed. Plaintiff has not demonstrated any substantial risk of serious harm

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based on his exposure to dusty air or dusty interview cages merely by stating, in a conclusory fashion,

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that the dust and air contains Valley Fever spores. Plaintiff’s allegations that his complaints to the

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prison officials about the dust-build up were ignored does not sufficiently demonstrate any knowing

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disregard to any excessive harm. Also, although Plaintiff complains of some health issues, he also
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alleges that he is receiving treatment. Plaintiff has not sufficiently allege a connection between the

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health issues and the dusty air or dusty cage exposure, nor any facts showing that he has any serious

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medical needs which are being disregarded.

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Plaintiff was granted an opportunity to amend his original complaint to address these

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deficiencies in his Eighth Amendment conditions of confinement and deliberate indifference claims.

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In this proposed third amended complaint, he has again failed to state a claim on this basis. Thus, the

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Court does not find it appropriate to grant leave to amend here. See Griggs v. Pace Am. Grp., Inc., 170

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F.3d 877, 881 (9th Cir. 1999) (amendment should not be permitted where it will not save the

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complaint, or the plaintiff seeks to prolong the litigation by adding new but baseless legal theories).

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Furthermore, Plaintiff was also warned about attempts to bring unrelated claims in a single

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action. Plaintiff appeared to understand and to heed that warning in amending his original complaint to

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only attempt to bring claims regarding the alleged December 31, 2014 uses of force by Defendants

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Huerta and Scalia, discussed above. Now that those claims are being dismissed without prejudice, it

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appears Plaintiff is attempting to revive previously abandoned, unrelated claims.

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Although the Court is cognizant of Plaintiff’s status as a layman and pro se litigant, Plaintiff

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was also previously instructed that he may not proceed as he is attempting to proceed here. The Court

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cannot allow Plaintiff to change the nature of this suit by adding new, unrelated claims in an amended

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complaint merely because the claims he previously chose to pursue have been dismissed. See George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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III.

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CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion for leave to amend his second amended complaint, filed September

26, 2016 (ECF No. 18), is DENIED;
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This action is dismissed, without prejudice, for Plaintiff’s failure to exhaust his

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available administrative remedies; and

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3.

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The Clerk of the Court is respectfully directed to terminate any pending motions or

deadlines, and close this case.

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IT IS SO ORDERED.

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Dated:

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March 29, 2017
UNITED STATES MAGISTRATE JUDGE

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