The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding with a civil rights action pursuant to 42 U.S.C. § 1983. On March 24, 2011, plaintiff filed a complaint alleging that defendants were deliberately indifferent to plaintiff's serious medical needs based on:
1. Defendant Selky's alleged failure to return plaintiff's medically-prescribed shoes to plaintiff for a period of 45 days beginning on December 29, 1998;
2. The alleged refusal of defendants Hooper and Castro to provide plaintiff with surgery for a deviated septum on April 16, 1997, and defendant Jennings' failure to provide medical care in early April of 1997; and
3. Defendant Matthew Cate allegedly caused plaintiff to be deprived of proper medical care.
By this action, plaintiff seeks damages and injunctive relief. Plaintiff also seeks to have this action filed nunc pro tunc based on his failed efforts to raise these claims in Lopez v. Peterson, 2:98-cv-2111 LKK EFB, commenced on October 28, 1998. After review of plaintiff's complaint and the filings in 2:98-cv-2111 LKK EFB, this court finds the instant action should be dismissed as barred by the statute of limitations.
On March 15, 2011, the district court issued an order in Case No. 2:98-cv-2111 LKK EFB, stating that the case had a contorted procedural history. Id., Dkt. No. 332. The relevant history of 2:98-cv-2111 LKK EFB is set forth below:
The October 28, 1998 original complaint was dismissed on April 14, 1999, and plaintiff filed an amended complaint on May 11, 1999. Id., Dkt. Nos. 1, 8 & 10.
On June 10, 1999, plaintiff's amended complaint was dismissed with leave to amend. Id., Dkt. No. 12. Plaintiff conceded he had not exhausted available administrative remedies, but the court found that plaintiff was not required to exhaust claims for monetary damages under legal authority controlling at the time. Id. at 2. On June 25, 1999, plaintiff filed a notice of exhaustion, and the amended complaint was reinstated on September 29, 1999. Id., Dkt. No. 14. The amended complaint raised multiple claims against 22 different defendants. Id., Dkt. No. 10.
On March 3, 2000, plaintiff's amended complaint was dismissed, and plaintiff was granted thirty days leave to file a second amended complaint. Id., Dkt. No. 47. After plaintiff was granted further extensions of time, the amendment deadline was vacated, and on December 12, 2000, the court found plaintiff had not established good cause for further delay, and ordered plaintiff to file the second amended complaint within thirty days. Id., Dkt. No. 86. Plaintiff failed to timely amend, and the case was dismissed on May 11, 2001. Id., Dkt. No. 98.
Plaintiff appealed, the action was remanded on March 3, 2003, dkt. no. 113, and on March 14, 2003, the May 11, 1999 amended complaint was reinstated. Id., Dkt. No. 114.
On June 24, 2005, the district court dismissed plaintiff's claim of deliberate indifference related to his alleged deviated septum, and defendants Hooper, Jennings and Castro were dismissed without prejudice. Id., Dkt. No. 227 at 14. Plaintiff's Eighth Amendment claim concerning the alleged deprivation of his medically prescribed shoes by defendant Selky was dismissed with prejudice based on the court's finding that plaintiff failed to state a claim because it did not appear plaintiff could amend the complaint to state a claim against defendant Selky based on plaintiff's allegations against Selky.*fn1 Id., Dkt. No. 227 at 7-8. The district court also made clear that plaintiff could not have exhausted the shoe deprivation claim because plaintiff alleged his shoes were taken on December 29, 1998, after the instant action was filed. Id., Dkt. No. 227 at 8 n.3. Plaintiff was informed that the basic requirement under the Prisoner Litigation Reform Act ("PLRA") is that all non-judicial remedies, i.e., administrative remedies, must be exhausted before a prisoner may file suit in federal court. 42 U.S.C. § 1997e(a). [Emphasis added.]
Lopez v. Peterson, 2:98-cv-2111 LKK EFB, Dkt. No. 227 at 10. Plaintiff was then informed that "[t]he proper remedy for failure to exhaust is dismissal of the unexhausted claims without prejudice to their renewal once they have been exhausted." Id., Dkt. No. 227 at 11.
Plaintiff subsequently filed an appeal.
On May 26, 2009, the Court of Appeals for the Ninth Circuit held that the district court properly dismissed without prejudice Lopez's claim against defendants Hooper, Jennings, and Castro based on an alleged failure to treat his deviated septum because Lopez did not properly exhaust administrative remedies as to this claim. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (explaining that "proper exhaustion" requires adherence to administrative procedural rules).
The district court properly dismissed Lopez's claims against defendant . . . Selky . . . based on [the] alleged forty-five delay in providing Lopez with his medically prescribed shoes because Lopez failed to exhaust his administrative remedies prior to filing this action. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam) (holding that exhaustion under 42 U.S.C. § 1997e(a) must occur prior to commencement of the action). However, the district court should have dismissed this claim without prejudice. See Wyatt, 315 F.3d at 1120.
Lopez v. Peterson, 2:98-cv-2011 LKK EFB P, Dkt. No. 316 at 4-5. As plaintiff was previously informed, these rulings by the Ninth Circuit are now law of the case and control here. Id., Dkt. No. 323 at 4, citing Vizcaino v. United States District Court, 173 F.3d 713, 718-19 (9th Cir. 1999).
Thereafter, on May 29, 2009, the district court issued an order reiterating a portion of the remand order, noting the dismissal of defendant Selky without prejudice. Lopez v. Peterson, 2:98-cv-2011 LKK EFB P, Dkt. No. 306 at 1. The May 29, 2009 order clause states:
1. The Amended Complaint as against defendants . . . Selky . . ., is DISMISSED, without prejudice, for failure of Plaintiff to exhaust his administrative remedies prior to filing his complaint.
Id., Dkt. No. 306 at 2. Plaintiff was granted leave to amend, and was specifically directed to file a second amended complaint that complied with the district court's orders entered June 11, 2003, and June 24, 2005, "to the extent affirmed by the U.S. Court of Appeals for the Ninth Circuit." Id. at 2.
The Ninth Circuit spread the mandate on September 4, 2009. Id., Dkt. No. 316. On October 7, 2009, plaintiff filed a second amended complaint in 2:98-cv-2111 LKK EFB, in which plaintiff included the claims raised in the instant action, despite the district court's May 29, 2009 order.
It appears service of process was never accomplished on either defendant Selky or defendant Hooper ...