(PC) Diaz v. Hurley ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MIGUEL ENRIQUE DIAZ, No. 2:19-cv-1241 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 ASSOCIATE WARDEN HURLEY, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. By order filed June 11, 2020, plaintiff’s 18 complaint was dismissed, and plaintiff was granted thirty days in which to file an amended 19 complaint. On July 9, 2020, plaintiff was granted an additional 45 days in which to amend. 20 On July 14, 2020, plaintiff filed a motion for investigation, and on July 17, 2020, plaintiff filed a 21 motion for relief from alleged retaliation. (ECF Nos. 32, 33.) 22 First, plaintiff is advised that this court does not investigate claims for litigants. If 23 plaintiff believes his rights under Coleman are being violated, he must bring such allegations to 24 the attention of counsel for the plaintiff class in Coleman. 25 Second, in his motion concerning retaliation, plaintiff claims that he was put in quarantine 26 on July 9, 2020, allegedly in retaliation for his attendance at law library. Plaintiff states he will be 27 in quarantine until July 24, 2020, three days after his deadline to file his amended pleading in this 28 action. Plaintiff’s filing provides sufficient grounds to support a second extension of time to file 1 his pleading;1 no additional relief is required at this time. Plaintiff adds that “the timing of his 2 quarantine will have exhausted his court deadlines” both here and in his Solano County Superior 3 Court case. (ECF No. 33 at 2.) While it is unclear what plaintiff means by that statement, this 4 court has no jurisdiction over state court actions. Plaintiff is still required to file an amended 5 pleading in this action if he wishes to pursue relief under 42 U.S.C. § 1983. 6 Third, plaintiff claims that there are “no administrative remedies available to [him] at 7 CMF.” (ECF No. 33 at 4.) Yet, he appends a copy of his typewritten inmate grievance. (ECF 8 No. 33 at 7-8.) Moreover, in the court’s last screening order, plaintiff was reminded of his 9 obligation to first exhaust administrative remedies as to any claim he raises in federal court. 10 (ECF No. 27 at 9-12.) In other words, exhaustion of available administrative remedies is 11 mandatory. (Id.) 12 Fourth, plaintiff’s filings include unrelated allegations concerning his current conditions 13 of confinement. But as plaintiff was previously advised, until an operative complaint is on file, 14 plaintiff cannot demonstrate a likelihood of success on the merits of any claim. See, e.g., Silvas 15 v. G.E. Money Bank, 449 F. App’x 641, 645 (9th Cir. 2011) (“Because the operative complaint 16 has been dismissed, we dismiss this interlocutory appeal as moot.”). Plaintiff’s prior complaint 17 was dismissed because it was a “shotgun” or “kitchen-sink” complaint that set forth multiple 18 unrelated claims against myriad defendants. (ECF No. 27 at 4-5.) Furthermore, this action has 19 suffered numerous delays; it was opened on July 1, 2019, with the filing of plaintiff’s motion for 20 injunctive relief. Despite multiple court orders, plaintiff did not file his first complaint until 21 February 26, 2020. While the court is not unsympathetic to plaintiff’s current situation, rather 22 than filing futile motions concerning his current conditions of confinement, plaintiff should focus 23 on drafting his operative amended complaint so that the court can address the merits of his 24 //// 25 1 Under the July 9, 2020 order, plaintiff was granted 45 days to file his amended complaint, 26 which would have been due August 24, 2020. Thus, plaintiff’s claim that his amended complaint 27 was due shortly after his release from quarantine on July 23, 2020, was not an accurate calculation of his deadline. However, given the current issues with the COVID-19 pandemic, and 28 plaintiff’s inability to attend the law library, the court grants plaintiff additional time. VM LOTTA INVITING TN MMVII OIA OF EOENY Faye Ve VIG 1 | underlying substantive claims. In addition, putative defendants are entitled to timely notice of 2 | plaintiffs claims. See Fed. R. Civ. P. 4(m). 3 Finally, plaintiff is cautioned that the court is not inclined to grant additional time for 4 | plaintiff to file his amended complaint absent a showing of substantial cause, and reminded that 5 | failure to timely file an amended complaint may result in the dismissal of this action. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiff is granted thirty days from the date of this order in which to file an amended 8 | complaint that complies with the June 11, 2020 order; and 9 2. Plaintiffs motions (ECF Nos. 32, 33) are denied without prejudice. 10 | Dated: August 27, 2020 A Abar 12 KENDALL J. NE /diaz1241.den UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28