(PC) Crosby v. Valencia

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA COURTNEY JEROME CROSBY, No. 2:18-cv-1848 JAM CKD P 12 Plaintiff, 13 v. ORDER R. VALENCIA, et al., 15 Defendants.

17 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. On July 16, 2019, plaintiff dismissed his claims against defendants Nuñez and Aguilar pursuant to Federal Rule of Civil Procedure 41(a). Plaintiff did not provide a reason for dismissing those defendants and he was not required to.

21 On August 7, 2019, plaintiff filed a motion seeking leave to file an amended complaint.

22 In the motion, plaintiff asserts he seeks to revive claims against Nuñez and Aguilar. Plaintiff asserts that the reason he dismissed Nuñez and Aguilar was because he did not exhaust available administrative remedies with respect to his claims against them prior to filing his complaint.

25 Since he did exhaust administrative remedies with respect to his claims before submitting his amended complaint, plaintiff believes his claims against Nuñez and Aguilar should be reinstated.

27 Under 42 U.S.C. § 1997(e)(a), “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies as are available | are exhausted.” This being the case, plaintiff cannot cure his failure to exhaust during an action || with respect to claims accruing before the action was initiated as exhaustion must occur before an | action is “brought.” See McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002).

4 | Accordingly, plaintiff has not demonstrated any cause for granting leave to amend.

5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's motion for leave to file an amended complaint (ECF No. 36) is denied; 7 2. Plaintiffs first amended complaint (ECF No. 38) is stricken; and 8 3. Defendant Nava and Valencia’s motion to strike plaintiff's amended complaint (ECF | No. 39) is denied as moot.

10 | Dated: September 27, 2019 CA rd ht / (g—, CAROLYN K DELANEY) 12 UNITED STATES MAGISTRATE JUDGE | 4 16 cros1848.mta