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Walton v. Allen

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 5, 2009

KEVIN LAVELLE WALTON, PLAINTIFF,
v.
A. ALLEN, DEFENDANT.

The opinion of the court was delivered by: Susan Oki Mollway United States District Judge

ORDER DENYING PLAINTIFF'S MOTION TO STAY PROCEEDINGS ORDER DENYING PLAINTIFF'S MOTION TO STAY PROCEEDINGS

On February 10, 2009, this court dismissed pro se Plaintiff Kevin LaVelle Walton's 42 U.S.C. § 1983 Complaint with leave to amend by March 9, 2009. Walton now submits a Motion for Stay of Proceedings. In light of the dismissal of Walton's Complaint, there are no proceedings on this matter before the court. The court accordingly construes this Motion as a request to extend the deadline to submit an amended Complaint.

Walton requests the extension of the deadline in order to exhaust his administrative appeals. This is not a valid reason to extend the deadline for his amended Complaint, however. Exhaustion of prison administrative procedures is to be completed prior to bringing a Complaint. 42 U.S.C. § 1997e(a). If Walton seeks to pursue his § 1983 Complaint after completing an administrative appeal, he must file a new Complaint. His Motion is therefore DENIED.

Walton is notified that dismissal of this action for failure to state a claim counts as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). Pursuant to 28 U.S.C. § 1915(g), a prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury."

IT IS SO ORDERED.

20090305

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