Cooksey

Filing 9

ORDER of Dismissal by Judge Edward M. Chen. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 2/8/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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In Re

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MARCELLUS COOKSEY,
Plaintiff.
___________________________________/

ORDER OF DISMISSAL

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For the Northern District of California

United States District Court

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No. C-12-5368 EMC (pr)

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This action was opened on October 17, 2012, when the Court received from Marcellus

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Cooksey a letter complaining about the conditions of confinement at the High Desert State Prison.

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On that date, the Court notified Mr. Cooksey in writing that his action was deficient in that he had

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not filed a complaint and had not filed an in forma pauperis application. The Court further notified

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Mr. Cooksey that this action would be dismissed if he did not submit a complaint within thirty days.

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Mr. Cooksey did not file a complaint. Instead, he requested a ninety-day extension of the

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deadline to file the complaint, so that he could complete the exhaustion of his administrative

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remedies. The problem for Mr. Cooksey is that administrative remedies need to be exhausted before

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an action is filed, and his request plainly shows they were not. See Vaden v. Summerhill, 449 F.3d

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1047, 1051 (9th Cir. 2006) (where administrative remedies are not exhausted before the prisoner

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sends his complaint to the court it will be dismissed even if exhaustion is completed by the time the

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complaint is actually filed). The request for an extension of time is DENIED because he has not

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shown cause to grant the extension. (Docket # 6.)

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There is another problem for Mr. Cooksey: even if he did file a complaint, the Northern

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District would not be the correct venue for this action. His letter (Docket # 1) shows that his

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concerns are about medical care at High Desert State Prison. High Desert State Prison is in Lassen

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County, and therefore within the venue of the Eastern District of California. See 28 U.S.C.

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§ 1391(b) (a civil action may be brought in a judicial district "in which a substantial part of the

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events or omissions giving rise to the claim occurred"). If and when Plaintiff is ready to file a civil

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rights complaint about the conditions of confinement at High Desert State Prison, he should file his

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complaint in the U.S. District Court for the Eastern District of California in Sacramento, California.

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Plaintiff has failed to file a complaint by the deadline. Accordingly, this action is

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DISMISSED without prejudice for failure to submit a pleading showing the Court has subject

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matter jurisdiction. Plaintiff's in forma pauperis applications are GRANTED. (Docket # 5, # 7.)

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The Clerk shall close the file.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: February 8, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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