McKinney v. CA Department of Corrections and Rehabilitation et al
Filing
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ORDER Denying Plaintiff's Motion To File A Supplemental Complaint (ECF No. 35 ), Thirty-Day Deadline, signed by Magistrate Judge Sandra M. Snyder on 6/8/2011. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GREGORY McKINNEY,
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CASE NO. 1:09-cv-00726-OWW-SMS PC
Plaintiff,
ORDER DENYING PLAINTIFF’S MOTION TO
FILE A SUPPLEMENTAL COMPLAINT
v.
(ECF No. 35)
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CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,
et al.,
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THIRTY-DAY DEADLINE
Defendants.
/
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Plaintiff Gregory McKinney (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April
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24, 2009. Defendants have been served and this action is in the discovery phase. On April 11, 2011,
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Plaintiff filed a motion for leave to file a supplemental complaint to add similar incidents that have
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occurred since he filed his complaint, however Plaintiff failed to include a copy of his supplemental
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complaint.
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Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with
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respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
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confined in any jail, prison, or other correctional facility until such administrative remedies as are
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available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion must occur prior to filing suit.
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McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). The section 1997e(a) exhaustion
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requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532
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(2002), and “[a]ll ‘available’ remedies must now be exhausted; those remedies need not meet federal
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standards, nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524 (citing to Booth
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v. Churner, 532 U.S. 731, 739 n.5 (2001)). Prisoners must complete the prison’s administrative
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process, regardless of the relief sought by the prisoner and regardless of the relief offered by the
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process, as long as the administrative process can provide some sort of relief on the complaint stated.
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Booth, 532 U.S. at 741.
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In light of section 1997e(a), Plaintiff may not add new and unrelated claims that arose after
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this suit was filed. In a “conflict between Federal Rule of Civil Procedure 15 and the PLRA, the rule
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would have to yield to the later-enacted statute to the extent of the conflict.” Harris v. Garner, 216
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F.3d 970, 982 (11th Cir. 2000). Rule 15 “does not and cannot overrule a substantive requirement
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or restriction contained in a statute (especially a subsequently enacted one).” Id. at 983; see also Cox
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v. Mayer, 332 F.3d 422, 428 (6th Cir. 2003) (citing Harris for this proposition with favor). Allowing
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Plaintiff to file a supplemental complaint would allow Plaintiff to thwart the mandate of section
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1997e(a), which requires that claim exhaustion occur prior to filing suit and not during the pendency
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of the suit. McKinney, 311 F.3d at 1199-1201.
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Since Plaintiff did not submit his supplemental complaint with his motion, the Court is
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unable to determine if the additional claims would require exhaustion prior to filing. All claims at
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issue in this action must have been exhausted by April 24, 2009, and Plaintiff’s motion for leave to
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file a supplemental complaint adding a new claim does not provide sufficient information to
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determine if supplementing the complaint would be futile.
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Based on the foregoing, Plaintiff’s motion, filed April 11, 2011, is HEREBY DENIED,
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without prejudice. Within thirty days from the date of service of this order, Plaintiff is granted leave
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to file a motion to supplement his complaint, which must include the supplemental complaint.
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IT IS SO ORDERED.
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Dated:
icido3
June 8, 2011
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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