IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 29, 2010
JAMES ERIN GARRISON, PLAINTIFF,
JAMES TILTON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff, a state prisoner proceeding without counsel, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff also seeks leave to proceed in forma pauperis.
Although directed by the court to file a completed application to proceed in forma pauperis or to pay the filing fee (Dkt. No. 3), plaintiff has filed an incomplete in forma pauperis application. Plaintiff's affidavit contains neither a certificate signed by an authorized officer indicating the balance in plaintiff's prison trust account, nor a certified trust account statement. (See Dkt. No. 7.) Plaintiff will be provided one additional opportunity to either submit a completed affidavit in support of his request to proceed in forma pauperis or to submit the full filing fee of $350.00.
However, plaintiff is informed that his complaint, while appearing to state a potentially cognizable Eighth Amendment claim, expressly acknowledges that plaintiff had not, at the time of filing, exhausted his administrative remedies. A prisoner may not bring a Section 1983 action until he has exhausted the administrative remedies that are available to him. 42 U.S.C. § 1997e(a). This requirement is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). While a plaintiff may add newly exhausted claims to an existing action, see Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010) (authorizing amended complaint containing newly exhausted claims based on related conduct that occurred after the filing of the original complaint), generally "a prisoner must exhaust his administrative remedies for the claims contained within his complaint before that complaint is tendered to the district court," id. at 1004, citing McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam), and Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006).*fn1 Thus, if plaintiff has now exhausted the claims set forth in his complaint, he should file a new and separate action.
The court presently informs plaintiff of the problem with his complaint so that he may make a reasoned decision whether to again seek leave to proceed in forma pauperis, the granting of which would commence immediate withdrawals from plaintiff's prison trust account.*fn2 The court's review is provisional.*fn3 Plaintiff is cautioned that if he chooses to proceed further by either paying the full civil filing fee required by 28 U.S.C. § 1914(a), or sufficiently moving to proceed in forma pauperis, his current complaint will be screened by the court and may be dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(b) regardless of payment or fee status. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim).
For the foregoing reasons, IT IS HEREBY ORDERED that, IF plaintiff intends to pursue the instant action:
1. Plaintiff shall submit, within thirty days after service of this order, on the form provided by the Clerk of Court, a completed affidavit in support of his request to proceed in forma pauperis, including a completed Certificate or Certified Trust Account Statement signed by an authorized officer, or plaintiff shall submit the $350.00 filing fee.
2. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner, as used in this District.
3. Plaintiff shall submit, within thirty days after service of this order, an amended complaint that demonstrates the administrative exhaustion of his claims.
4. The Clerk of the Court is directed to send plaintiff a blank Civil Rights Complaint By a Prisoner, as used in this District.
5. Failure to timely comply with this order will result in a recommendation that this action be dismissed.