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Anthony Nguyen v. M. D. Biter

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 23, 2011

ANTHONY NGUYEN,
PLAINTIFF,
v.
M. D. BITER,
DEFENDANT.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING MOTION TO RELIEVE PLAINTIFF FROM EXHAUSTION REQUIREMENT, AND DENYING MOTION FOR EXTENSION OF TIME TO AMEND AS PREMATURE (Docs. 44 and 45)

Plaintiff Anthony Nguyen, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 18, 2011. On December 22, 2011, Plaintiff filed a motion seeking to be excused from exhausting by the Court and a motion seeking an extension of time to amend.

Plaintiff is required to exhaust his claims via the prison's grievance process prior to filing suit, and he may not seek to be excepted from this requirement by the Court, pre-litigation, so that he may add unexhausted claims to his complaint. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910 (2007); Porter v. Nussle, 435 U.S. 516, 524, 122 S.Ct. 983 (2002). Accordingly, Plaintiff's motion is denied.

Regarding Plaintiff's intent to amend, in as much as Plaintiff is expressing an intent to amend to add new parties and new claims which have not been exhausted, Plaintiff is warned that in addition to the exhaustion requirement, he also may not add unrelated claims against unrelated parties to this action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Any unrelated claims against unrelated parties will be dismissed from this action for improper joinder, should they be included in Plaintiff's amended complaint. 28 U.S.C. § 1915A.

Additionally, Plaintiff was granted a thirty-day extension of time within which to amend on December 13, 2011. Therefore, Plaintiff's motion seeking an additional extension is premature and is denied.

For the reasons set forth herein, Plaintiff's motion seeking to be excused from exhausting and Plaintiff's motion for another extension of time to amend are HEREBY DENIED.

IT IS SO ORDERED.

20111223

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