Stephen v. Williams et al

Filing 78

ORDER DENYING POST-JUDGMENT MOTIONS 76 77 . (Illston, Susan) (Filed on 9/30/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JIMMIE EARL STEPHEN,

Case No. 14-cv-01245-SI

Plaintiff,
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v.

ORDER DENYING POST-JUDGMENT
MOTIONS

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ALVAREZ, et al.,

Re: Dkt. Nos. 76, 77

Defendants.

United States District Court
Northern District of California

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In this pro se prisoner’s civil rights action, plaintiff sued several prison officials for

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deliberate indifference to his medical needs. On June 7, 2016, the court granted defendants’

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motion for summary judgment based on non-exhaustion of administrative remedies and entered

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judgment against plaintiff.

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Plaintiff has filed a “‘motion to re-open’ from 6-7-16 ‘dismissal without prejudice,’” in

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which he appears to contend that he has exhausted administrative remedies. Attached to his

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motion is a third level administrative appeal decision dated September 1, 2016 referring to another

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cancelled appeal. See Docket No. 76 at 3. The motion to re-open is DENIED. Docket No. 76.

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Administrative remedies must be exhausted before an action is filed; a post-judgment exhaustion

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of administrative remedies would not satisfy the exhaustion requirement in 42 U.S.C. § 1997e(a).

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The September 1, 2016 third level decision did not satisfy the exhaustion requirement for this

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action filed in 2014. The court dismissed this action without prejudice to plaintiff filing a new

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action (rather than without prejudice to him moving to reopen this action) if he ever complies with

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the exhaustion requirement.

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Plaintiff’s “request by ‘order’ FRCP Rule # 26, 34 ‘production’ . . forthwith” seeks

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discovery about an unserved defendant who was dismissed on October 20, 2015. Docket No. 77.

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The request is DENIED for the reasons stated at page 12 of the order granting summary judgment

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for defendants. See Docket No. 74 at 12. The request is denied for the additional reason that it is

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untimely. This action is closed, and it is too late to conduct discovery in it.

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IT IS SO ORDERED.
Dated: September 30, 2016
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SUSAN ILLSTON
United States District Judge

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United States District Court
Northern District of California

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