Rojo

Filing 5

ORDER EXTENDING DEADLINES 4 (Illston, Susan) (Filed on 7/18/2012)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 In Re. No. C 12-2518 SI (pr) 9 JAMES ROJO, ORDER EXTENDING DEADLINES United States District Court For the Northern District of California 10 11 Plaintiff. / 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This action was opened on May 16, 2012, when the court received from plaintiff a letter in which he complained about medical care at the prison at which he was incarcerated. In an effort to protect his rights, it was filed as a new action. Plaintiff was informed that he had not filed a complaint, and was given thirty days to do so. He also was sent a notice that he had not paid the filing fee or applied for leave to proceed in forma pauperis, and was given thirty days to either pay the fee or file the application. A copy of the court's form in forma pauperis application was provided with the notice, along with a return envelope. Plaintiff did not file a complaint or file an in forma pauperis application or pay the fee. Instead, he filed a letter in which he requested a stay of the action so that he could exhaust administrative remedies as to his claims. The reported need to exhaust administrative remedies does not warrant a stay because exhaustion of administrative remedies must be accomplished before the action is filed, not while it is pending. An action must be dismissed unless the prisoner exhausted his available administrative remedies before he or she filed suit, even if the prisoner fully exhausts while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (where administrative 1 remedies are not exhausted before the prisoner sends his complaint to the court it will be 2 dismissed even if exhaustion is completed by the time the complaint is actually filed). The 3 request for a stay therefore is DENIED. (Docket # 4.) In case plaintiff was waiting for a ruling on his request before complying with the notices 5 he received from the court, the court will extend the deadlines for compliance with the notices. 6 No later than August 17, 2012, plaintiff must file his complaint. Failure to file a complaint (or 7 other pleading showing the court has jurisdiction) by the deadline will result in the dismissal of 8 this action. Also no later than August 17, 2012, plaintiff must file a completed in forma 9 pauperis application (including a certificate of funds in the inmate trust account for the last six 10 United States District Court For the Northern District of California 4 months) or pay the $350.00 filing fee. Failure to file a completed application or pay the fee by 11 the deadline will result in the dismissal of this action. No further extensions of these deadlines 12 should be expected. 13 14 IT IS SO ORDERED. Dated: July 18, 2012 _______________________ SUSAN ILLSTON United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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