Filing 9

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

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 In Re 9 MARCELLUS COOKSEY, Plaintiff. ___________________________________/ ORDER OF DISMISSAL 11 For the Northern District of California United States District Court 10 No. C-12-5368 EMC (pr) 12 This action was opened on October 17, 2012, when the Court received from Marcellus 13 Cooksey a letter complaining about the conditions of confinement at the High Desert State Prison. 14 On that date, the Court notified Mr. Cooksey in writing that his action was deficient in that he had 15 not filed a complaint and had not filed an in forma pauperis application. The Court further notified 16 Mr. Cooksey that this action would be dismissed if he did not submit a complaint within thirty days. 17 Mr. Cooksey did not file a complaint. Instead, he requested a ninety-day extension of the 18 deadline to file the complaint, so that he could complete the exhaustion of his administrative 19 remedies. The problem for Mr. Cooksey is that administrative remedies need to be exhausted before 20 an action is filed, and his request plainly shows they were not. See Vaden v. Summerhill, 449 F.3d 21 1047, 1051 (9th Cir. 2006) (where administrative remedies are not exhausted before the prisoner 22 sends his complaint to the court it will be dismissed even if exhaustion is completed by the time the 23 complaint is actually filed). The request for an extension of time is DENIED because he has not 24 shown cause to grant the extension. (Docket # 6.) 25 There is another problem for Mr. Cooksey: even if he did file a complaint, the Northern 26 District would not be the correct venue for this action. His letter (Docket # 1) shows that his 27 concerns are about medical care at High Desert State Prison. High Desert State Prison is in Lassen 28 County, and therefore within the venue of the Eastern District of California. See 28 U.S.C. 1 ยง 1391(b) (a civil action may be brought in a judicial district "in which a substantial part of the 2 events or omissions giving rise to the claim occurred"). If and when Plaintiff is ready to file a civil 3 rights complaint about the conditions of confinement at High Desert State Prison, he should file his 4 complaint in the U.S. District Court for the Eastern District of California in Sacramento, California. 5 Plaintiff has failed to file a complaint by the deadline. Accordingly, this action is 6 DISMISSED without prejudice for failure to submit a pleading showing the Court has subject 7 matter jurisdiction. Plaintiff's in forma pauperis applications are GRANTED. (Docket # 5, # 7.) 8 The Clerk shall close the file. 9 IT IS SO ORDERED. 11 For the Northern District of California United States District Court 10 12 Dated: February 8, 2013 13 _________________________ EDWARD M. CHEN United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?