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Cortinas v. Scalia

United States District Court, E.D. California

March 29, 2017

LARRY WILLIAM CORTINAS, Plaintiff,
v.
M. HUERTA, et al., Defendants.

          ORDER DENYING MOTION FOR LEAVE TO AMEND SECOND AMENDED COMPLAINT ORDER DISMISSING ACTION, WITHOUT PREJUDICE, FOR PLAINTIFF'S FAILURE TO EXHAUST HIS ADMINISTRATIVE REMEDIES [ECF NOS. 16, 18]

         Plaintiff Larry William Cortinas is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff consented to magistrate judge jurisdiction. (ECF No. 6.)

         Currently before the Court is Plaintiff's response to the Court's order to show cause, filed on September 19, 2016 (ECF No. 17), and Plaintiff's motion for leave to amend his second amended complaint, filed on September 26, 2016 (ECF No. 18).

         I. BACKGROUND

         Plaintiff initiated this action by filing a complaint on December 18, 2014. (ECF No. 1.) The original complaint alleged a number of different, unrelated claims regarding events spanning several years. On November 10, 2015, the Court screened Plaintiff's complaint, and dismissed it with leave to amend. (ECF No. 8.) Plaintiff was instructed to amend only those claims that he believed, in good faith, were viable and properly joined in a single action. (Id. at p. 8.)

         On December 9, 2015, Plaintiff filed a first amended complaint. (ECF No. 10.) That first amended complaint concerned Plaintiff's allegations of excessive force and deliberate indifference to serious medical needs in violation of the Eighth Amendment, arising out of events from December 31, 2014 through August 14, 2015. On January 20, 2016, the Court screened Plaintiff's first amended complaint. (ECF No. 12.) The Court found that Plaintiff's first amended complaint stated a claim against Defendants Huerta and Scalia for excessive force in violation of the Eighth Amendment arising out of alleged events on December 31, 2014, but stated no other cognizable claim. (Id. at p. 6.) Plaintiff was ordered to either file a second amended complaint to attempt to cure the deficiencies identified by the Court in that order, or to notify the Court of his willingness to proceed only on the cognizable claims in the first amended complaint. (Id.)

         On March 21, 2016, Plaintiff filed a second amended complaint, on an extension of time. (ECF No. 15.) This complaint concerned only the alleged December 31, 2014 uses of force by Defendants Huerta and Scalia.

         In both Plaintiff's original complaint and first amended complaint, Plaintiff indicated that he had exhausted his available administrative remedies, but did not indicate when he did so. In the second amended complaint, Plaintiff alleged that he filed a grievance concerning all of the facts contained in the second amended complaint, and that the administrative process was completed on August 18, 2015, after this action was commenced. Accordingly, on August 31, 2016, the Court issued an order to show cause why the action should not be dismissed for Plaintiff's failure to exhaust the administrative remedies prior to commencing suit here. (ECF No. 16.)

         Plaintiff filed a response to the order to show cause on September 19, 2016. (ECF No. 17.) Plaintiff also filed a motion to amend the second amended complaint, on September 26, 2016. (ECF No. 18.) On January 27, 2017, Plaintiff lodged a proposed third amended complaint. (ECF No. 19.)

         II. DISCUSSION

         A. Order to Show Cause

         In Plaintiff's response to the order to show cause, he acknowledges that the events he complains about occurred before he filed his original complaint, and he seeks leave to file a separate civil action regarding the alleged uses of force. He also seeks leave to amend his complaint, stating that he forgot to leave in a portion of his original complaint that was integral. (ECF No. 17.)

         Pursuant to the Prison Litigation Reform Act of 1996, “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002). Exhaustion, if feasible, should be decided before reaching the merits of a prisoner's claim. Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014).

         This is one of those rare cases where a failure to exhaust administrative remedies is clear on the face of the complaint. As stated in the order to show cause, Plaintiff indicates in his second amended complaint that the grievance process concerning the excessive force claim raised in this action was not completed until August 18, 2015, after this action was initiated. Further, he does not dispute this fact in his response to the order to show cause. Instead, Plaintiff contends that he brought this action in error, and requests leave to file a separate suit.[1]

         Accordingly, dismissal of this action, without prejudice, for Plaintiff's failure to exhaust his available ...


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