D'Agostino v. Walsh et al

Filing 52

ORDER denying Plaintiff's 49 Motion to Reconsider. Signed by Judge Robert C. Jones on 01/10/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FRANK S. D’AGOSTINO,

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Plaintiff Frank S. D’Agostino is a prisoner in the custody of the Nevada Department of

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Corrections. He filed the present civil rights Complaint in this Court, and the Court permitted

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two claims to proceed upon screening. Defendants later moved to dismiss those claims for

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failure to exhaust administrative remedies. The magistrate judge recommended granting the

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motion and dismissing without prejudice, and the Court adopted the recommendation. Plaintiff

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has asked the Court to reconsider. Specifically, he asks the Court to reopen the case and stay it

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while he exhausts his administrative remedies or allow him to refile the case under the same case

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number upon exhaustion. The Court denies the motion. Plaintiff may file a new case if and

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when he exhausts his administrative remedies. The state statute providing for a stay under

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similar circumstances is manifestly a procedural rule that does not control in federal court.

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Plaintiff,
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vs.
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LISA WALSH et al.,
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Defendants.

3:12-cv-00065-RCJ-WGC
ORDER

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 49) is DENIED.

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IT IS SO ORDERED.

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Dated this 3rdthday of January, 2014.
Dated this 10 day of January, 2014.

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_____________________________________
ROBERT C. JONES
United States District Judge

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