Opinion
1:23-cv-00075-JLT-EPG (PC)
02-17-2023
DEAN MARTIN SEALEY, Plaintiff, v. CSATF STATE PRISON, et al., Defendants.
ORDER DISCHARGING ORDER FOR PLAINTIFF TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE DISMISSED, WITHOUT PREJUDICE, FOR FAILURE TO COMPLY WITH COURT ORDERS AND TO PROSECUTE THIS CASE ORDER DIRECTING CLERK TO OPEN NEW CASE AND ADMINISTRATIVELY CLOSE THIS ACTION (ECF NOS. 14 & 19)
Dean Sealey (“Plaintiff”) is a state prisoner proceeding pro se in this action.
Plaintiff filed a letter commencing this action in the United States District Court for the Northern Division of California on October 21, 2022. On that same day, Plaintiff was directed to submit a completed complaint (or petition) on the proper form and to file an application to proceed in forma pauperis. (ECF Nos. 2 & 3). Plaintiff filed a motion for an extension of time to file his complaint (ECF No. 8), and Plaintiff was given until January 9, 2023, to file his complaint and to either pay the filing fee or file an application to proceed in forma pauperis (ECF No. 9). The case was transferred to the Eastern District on January 18, 2023. (ECF No. 12).
Plaintiff's deadline to file his complaint and to either pay the filing fee or file an application to proceed in forma pauperis passed, and Plaintiff failed to do either. Accordingly, the Court ordered Plaintiff to show cause as to why this action should not be dismissed, without prejudice, for failure to comply with court orders and to prosecute this case. (ECF No. 14).
On February 16, 2023, Plaintiff filed his response to the Court's order to show cause. (ECF No. 19). In the response, Plaintiff clarifies that he did not intend for the letter to initiate a new action, because he had not yet exhausted available administrative remedies. (Id. at 5). Plaintiff alleges that as of December 12, 2022, he finished exhausting available administrative remedies, and he subsequently filed a complaint in the Eastern District of California. (Id. at 1 & 5). Plaintiff asks the Court to discharge his order to show cause and to “grant to him relief from PLRA due to his exercise of due diligence in attempting to address grievance administratively with no response from (PIA) officials.” (Id. at 5). Attached to Plaintiff's response are complaints filed by Plaintiff, responses to his complaints, and a copy of his 42 U.S.C. § 1983 civil rights complaint.
The Court will not rule on the affirmative defense of exhaustion of administrative remedies at this time. However, given Plaintiff's assertion that he did not intend for his letter to initiate a new action and that he instead filed a complaint in this district on February 2, 2023, after he finished exhausting his administrative remedies, the Court will discharge the order to show cause, direct the Clerk of Court to open a new § 1983 action for Plaintiff, and direct the Clerk of Court to administratively close this action.
It does not appear that the Court received a copy of Plaintiff's complaint, except as an exhibit to Plaintiff's response to the order to show cause.
Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:
1. The order to show cause issued on January 20, 2023 (ECF No. 14), is DISCHARGED; and
2. The Clerk of Court is directed to:
a. Open a new § 1983 action for Plaintiff;
b. Assign the undersigned as the magistrate judge in the new action;
c. Apply the filing fee Plaintiff paid in this case to the new action;
d. File and docket a copy of Plaintiff's lodged complaint (ECF No. 19, pgs. 20-31) in the newly opened action;
e. Serve Plaintiff with a copy of the new case documents;
f. Provide Plaintiff with the case number for the newly opened action;
g. Serve a copy of this order on the Financial Department, U.S. District Court, Eastern District of California, Sacramento Division; and
h. Administratively close this case.
IT IS SO ORDERED.