Dews v. Chen

Full title: CLARENCE LEON DEWS, Plaintiff, v. DR. CHEN, ET AL, Defendants.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Jun 19, 2013

1:12-cv-01221-RRB (E.D. Cal. Jun. 19, 2013)

Opinion

CLARENCE LEON DEWS, Plaintiff, v. DR. CHEN, ET AL, Defendants. No. 1:12-cv-01221-RRB United States District Court, E.D. California. June 19, 2013

          ORDER DISMISSING COMPLAINT

          RALPH R. BEISTLINE, District Judge.

         Clarence Leon Dews, a state prisoner appearing pro se and in forma pauperis, filed a civil rights action under 42 U.S.C. § 1983.¹ On May 7, 2013, this Court dismissed the Complaint with leave to amend.² At Docket No. 17 Dews filed an Amended Complaint ostensibly in compliance with that Order.³ Concurrent with his Amend Complaint, at Docket No. 16 Dews filed a document that appears to be a request that the Court reconsider its earlier decision and seeking the services of a court-appointed private investigator.

1 Although this action was ostensibly brought by eight named plaintiffs, it is proceeding solely with Dews as the plaintiff.

2 Dkt. 15.

3 As with the original Complaint, despite the Court's specific advisement that the action was proceeding as to Dews alone, the First Amended Complaint purports to be filed by several named prisoner-plaintiffs.

         I. DISCUSSION

         This Court dismissed the Complaint because it appeared on the face of the Complaint that Dews had not properly exhausted his state-law administrative remedies. A prisoner must exhaust his administrative remedies prior to filing suit, not during the pendency of the suit.⁴ Although this Court noted that it did not appear likely that Dews could have properly exhausted his administrative remedies prior to the commencement of this suit, the Court nonetheless provided Dews with the opportunity to plead compliance with the exhaustion requirement. Dews' First Amended Complaint makes clear that Dews cannot truthfully plead exhaustion. Nor does it appear that Dews is excused from exhausting his administrative remedies under California law. Accordingly, any further leave to file an amended complaint would be futile.

4 42 U.S.C. § 1997e(a) (mandating that "[n]o action shall be brought... until [the prisoner's] administrative remedies... are exhausted."); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam).

         II. ORDER

         IT IS THEREFORE ORDERED that the motion at Docket No. 16 is DENIED in all respects.

         IT IS FURTHER ORDERED that the Complaint on file herein is DISMISSED, without prejudice.

         The Clerk of the Court is directed to enter judgment accordingly.

         IT IS SO ORDERED.