Clark v. Washington et al

Filing 10

ORDER: (1) Denying Request for Appointment of Counsel and Stay; and (2) Dismissing For Failing to Exhaust Administrative Remedies Pursuant to 42 U.S.C. § 1997e. The Clerk of Court shall close the file. Signed by Judge Barry Ted Moskowitz on 5/19/2011.(All non-registered users served via U.S. Mail Service)(jer)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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JASON WAYNE CLARK,
CDCR #J-07943,
Plaintiff,

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Civil No.

10cv2171 BTM (WMc)

ORDER:
(1) DENYING REQUEST FOR
APPOINTMENT OF COUNSEL
AND STAY; and

vs.
D. WASHINGTON; B. HATFIELD;
L. GARZA; A. GARCIA; S. CRUZ;
T. CATLETT; P. CASTRO; D. CARR;
J. JIMENEZ, JR.; G.J. JANDA;
L.S. McEWEN; DIRECTOR OF
CORRECTIONS,

(2) DISMISSING FOR FAILING TO
EXHAUST ADMINISTRATIVE
REMEDIES PURSUANT TO 42
U.S.C. § 1997e

Defendants.

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I.

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PROCEDURAL HISTORY

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Plaintiff, Jason Wayne Clark, a state prisoner currently incarcerated at Salinas Valley

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State Prison and proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983.

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Plaintiff also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

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§ 1915(a), along with a Motion to Appoint Counsel. On November 29, 2010, the Court granted

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Plaintiff’s Motion to Proceed IFP, denied his Motion to Appoint Counsel and sua sponte

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dismissed his Complaint for failing to state a claim. See Nov. 29, 2010 Order at 4-6. Plaintiff
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10cv2171 BTM (WMc)

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has now filed his First Amended Complaint in which there contains a renewed request for

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appointment of counsel and what appears to be a request for a stay while he exhausts his

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administrative remedies.

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II.

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REQUEST FOR COUNSEL

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The Constitution provides no right to appointment of counsel in a civil case, however,

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unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v.

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Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1),

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district courts are granted discretion to appoint counsel for indigent persons. This discretion may

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be exercised only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both the

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‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se

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in light of the complexity of the legal issues involved.’ Neither of these issues is dispositive and

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both must be viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986)).

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The Court denies Plaintiff’s request without prejudice, as neither the interests of justice

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nor exceptional circumstances warrant appointment of counsel at this time. Terrell, 935 F.2d

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at 1017.

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III.

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REQUEST FOR STAY

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In Plaintiff’s First Amended Complaint he appears to seek a stay of the proceedings while

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he completes the exhaustion of his administrative grievances. The Court cannot grant a stay as

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Plaintiff must exhaust his available administrative remedies before he filed this action. The plain

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language of 42 U.S.C. § 1997e(a) provides that no § 1983 action “shall be brought . . . until such

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administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (emphasis added).

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The Ninth Circuit’s decision in McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002) holds that

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prisoners who are incarcerated at the time they file a civil action which challenges the conditions

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of their confinement are required to exhaust “all administrative remedies as are available” as a

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10cv2171 BTM (WMc)

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mandatory precondition to suit. See McKinney, 311 F.3d at 1198. Section 1997e(a) “clearly

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contemplates exhaustion prior to the commencement of the action as an indispensable

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requirement. Exhaustion subsequent to the filing of the suit will not suffice.” Id. (quoting

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Medina-Claudio v. Rodriquez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002)).

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Here, Plaintiff has conceded that he has not yet exhausted his administrative remedies

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prior to filing this action. See FAC at 6-7. A prisoner’s concession that he failed to exhaust

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administrative remedies pursuant to 42 U.S.C. § 1997e(a) is a valid ground for dismissal. See

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Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). Thus, the Court DISMISSES Plaintiff’s

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action in its entirety for failing to exhaust his administrative remedies pursuant to 42 U.S.C.

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§ 1997e. This dismissal is without prejudice to permit Plaintiff to refile a separate action upon

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completion of the administrative grievance process.

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IV.

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CONCLUSION AND ORDER

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s request for appointment of counsel and stay of the proceedings is

DENIED without prejudice.

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IT IS FURTHER ORDERED that:

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2.

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Plaintiff’s action is DISMISSED without prejudice for failing to exhaust his

administrative remedies pursuant to 42 U.S.C. § 1997e.

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The Clerk of Court shall close the file.

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IT IS SO ORDERED.

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DATED: May 19, 2011

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Honorable Barry Ted Moskowitz
United States District Judge

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10cv2171 BTM (WMc)