Canada v. Niebert

Filing 26

ORDER denying 23 Motion for 60-Day Extension of Time to file First Amended Complaint as moot. ORDER to SHOW CAUSE why action should not be dismissed, without prejudice, for failure to exhaust prior to filing suit signed by Magistrate Judge Barbara A. McAuliffe on 11/28/2017. Show Cause Response due within 21-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RONALD LEE CANADA, 12 Plaintiff, 13 v. 14 NIEBERT, et al, 15 Defendants. 16 ORDER DENYING MOTION FOR 60-DAY EXTENSION OF TIME TO FILE FIRST AMENDED COMPLAINT AS MOOT ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST PRIOR TO FILING SUIT TWENTY-ONE (21) DAY DEADLINE 17 18 Case No. 1:17-cv-00873-BAM (PC) Plaintiff Ronald Lee Canada (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was initiated 20 on June 23, 2017. (ECF No. 1.) 21 On September 15, 2017, prior to the screening of Plaintiff’s complaint, Plaintiff filed a 22 motion to amend the complaint to identify the Doe Defendants as correctional officers Takahashi 23 and Keister. (ECF No. 12.) The Court granted the motion and directed Plaintiff to file a first 24 amended complaint with thirty days. (ECF No. 14.) Following an extension of time, Plaintiff’s 25 first amended complaint was due on or before November 22, 2017. (See ECF Nos. 17, 20, 22.) 26 Currently before the Court are Plaintiff’s motion for 60-day extension of time to file first 27 amended complaint, filed on November 14, 2017, (ECF No. 23), and Plaintiff’s first amended 28 complaint and notice regarding 602 form, both filed on November 27, 2017, (ECF Nos. 24–25). 1 1 I. 2 In his motion, Plaintiff requests a 60-day extension of time to file his amended complaint. Motion for Extension of Time 3 Plaintiff explains that he needs additional time to obtain his third level appeal back from the 4 CDCR Chief of Inmate Appeals, in order to complete his first amended complaint. (ECF No. 23.) 5 As noted above, Plaintiff’s first amended complaint was due on or before November 22, 6 2017. (See ECF Nos. 17, 20, 22.) Although Plaintiff’s first amended complaint and notice 7 regarding 602 form were not docketed until November 27, 2017, both documents include proofs 8 of service by mail or are dated November 19, 2017. (See ECF Nos. 24, p. 18; 25, p. 2.) Pursuant 9 to the prison mailbox rule, a pleading filed by a pro se prisoner is deemed to be filed as of the 10 date the prisoner delivered it to the prison authorities for mailing to the court clerk. See Houston 11 v. Lack, 487 U.S. 266, 270 (1988); Douglas v. Noelle, 567 F.3d 1103, 1108–09 (9th Cir. 2009) 12 (mailbox rule articulated in Houston applies to civil rights actions). Thus, Plaintiff’s first 13 amended complaint was timely filed, and the motion for extension of time is denied as moot. 14 II. First Amended Complaint 15 Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be 16 brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 17 prisoner confined in any jail, prison, or other correctional facility until such administrative 18 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust 19 the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 20 (2007); McKinney v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002). Exhaustion is required 21 regardless of the relief sought by the prisoner and regardless of the relief offered by the process, 22 Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits 23 relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002). 24 In his motion for extension of time, Plaintiff states that he has not yet completed his third 25 level appeal. (ECF No. 23.) Plaintiff also concedes in his first amended complaint that although 26 he submitted an appeal concerning the facts contained in the complaint, he has not yet completed 27 the process. Plaintiff clarifies that his appeal remains pending at the third level, Log #KVSP-17- 28 01841. (ECF No. 24, p. 8.) Finally, Plaintiff’s notice to the Court regarding his 602 form merely 2 1 states that Plaintiff was intending to attach his 602 complaint to his amended complaint, but he 2 cannot do so because his legal property is with the CDCR appeals office. (ECF No. 25.) 3 However, Plaintiff does not state that he completed the administrative appeals process prior to 4 filing this suit. Thus, it appears Plaintiff filed suit prematurely without first exhausting his 5 administrative remedies in compliance with the PLRA, 42 U.S.C. § 1997e(a). 6 III. 7 Accordingly, IT IS HEREBY ORDERED as follows: 8 1. 9 10 Conclusion and Order Plaintiff’s motion for 60-day extension of time to file a first amended complaint, (ECF No. 23), is DENIED as moot; 2. Plaintiff is ordered to show cause within twenty-one (21) days from the date of 11 service of this order why this action should not be dismissed, without prejudice, for failure to 12 exhaust prior to filing suit. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (in rare 13 cases where a failure to exhaust is clear from the face of the complaint, it may be dismissed for 14 failure to state a claim); Medina v. Sacramento Cty. Sheriff’s Dep’t, No. 2:16-cv-0765 AC P, 15 2016 WL 6038181, at *3 (E.D. Cal. Oct. 14, 2016) (“When it is clear from the face of the 16 complaint and any attached exhibits that a plaintiff did not exhaust his available administrative 17 remedies before commencing an action, the action may be dismissed on screening for failure to 18 state a claim.”); Lucas v. Dir. of Dept. of Corrs., 2015 WL 1014037, at *4 (E.D. Cal. Mar. 6, 19 2015) (relying on Albino and dismissing complaint without prejudice on screening due to 20 plaintiff’s failure to exhaust administrative remedies prior to filing suit); and 21 22 3. Failure to comply with this order will result in a recommendation that this action be dismissed, without prejudice, for failure to comply with a Court order. 23 24 25 IT IS SO ORDERED. Dated: /s/ Barbara November 28, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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