Kakowski v. Smith et al

Filing 10

ORDER re 8 Notice, directing Plaintiff to notify the Court within 30 days whether he intends to proceed with this case or seek a voluntary dismissal. (Notice of Compliance is due by 11/6/2014.) Signed by Judge Robert C. Jones on 10/7/2014. (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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Plaintiff,
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v.
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GREG SMITH et al.,
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Defendants.
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___________________________________ )

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I.

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BRIAN KAKOWSKI,

3:14-cv-413-RCJ-WGC
ORDER

DISCUSSION

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Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections

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(“NDOC”), has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed

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an application to proceed in forma pauperis and a motion for appointment of counsel. (ECF

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No. 1, 1-1, 3, 5). The Court has not yet screened the complaint pursuant to 28 U.S.C.

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§ 1915A.

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On September 25, 2014, Plaintiff filed a notice with the Court. (ECF No. 8). In the

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notice, Plaintiff states that he is awaiting extradition to California and that it may occur at any

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time. (Id. at 3). Plaintiff wishes to put this case on hold due to his extradition or, in the

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alternative, to “pull the case and re-file” it once he is in California. (Id.). If the Court “pulls” his

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case, he seeks instruction on how to re-file using the same complaint and exhibits and asks

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whether the grievance process matters if he is extradited. (Id.). Plaintiff notes that the

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grievance process is not complete in this case. (Id.).

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As an initial matter, “[t]he Court cannot give legal advice or counsel pro se litigants,

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save for recommending that they seek the advice of a trained attorney.” Randazza v. Cox,

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2:12-CV-2040-JAD-PAL, 2014 WL 1407378, *10 (D. Nev. Apr. 10, 2014). As such, the Court
cannot advise Plaintiff as to whether the grievance process will matter if he is extradited.

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With respect to staying the case, in McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002),

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the Ninth Circuit held that a district court must dismiss an action involving prison conditions

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when the plaintiff does not exhaust his administrative remedies prior to filing suit but is in the

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process of doing so when a motion to dismiss is filed. Id. at 1199. As such, the Court finds

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that, in accordance with Ninth Circuit law, the Court must dismiss the case, without prejudice,

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if Plaintiff has not exhausted his administrative remedies. Accordingly, the Court denies

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Plaintiff’s request to “hold” the case. However, the Court grants Plaintiff thirty (30) days from

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the date of this order to inform this Court whether Plaintiff intends to: (a) proceed with this

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action–despite being in the midst of the grievance process–or (b) seek a voluntary dismissal

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of this case, without prejudice, to finish the grievance process and/or await extradition to

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California. If Plaintiff fails to notify the Court of his chosen option, this case will proceed and

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Defendants may raise exhaustion in a subsequent motion. If Plaintiff chooses to voluntarily

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dismiss this case, the Court will not impose a filing fee for this case. If Plaintiff chooses to

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voluntarily dismiss this case, the Court will send Plaintiff a copy of his original complaint, an

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application to proceed in forma pauperis, and instructions for the application to proceed in

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forma pauperis.

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II.

CONCLUSION

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For the foregoing reasons, IT IS ORDERED that within thirty (30) days from the date

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of this order, Plaintiff shall notify this Court about whether he intends to proceed with this case

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or seek a voluntary dismissal.

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IT IS FURTHER ORDERED that if Plaintiff fails to timely inform the Court of his

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decision, this case will remain open and the Court will proceed with the screening process

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under 28 U.S.C. § 1915A.

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Dated: October 7, 2014. of September, 2014.
DATED: This _____ day

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_________________________________
United States District Judge

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