Lockett

• Court: District Court, N.D. California
• Decided: March 26, 2025
• Docket: 3:24-cv-07493
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TRIVON NUVELL LOCKETT, Case No. 24-cv-07493-WHO (PR)

Plaintiff, 8 ORDER DISMISSING COMPLAINT v. 9 WITH LEAVE TO AMEND

10 Y. DELGADO, Defendant. 11

12 13 Plaintiff Trivon Nuvell Lockett’s 42 U.S.C. § 1983 action is DISMISSED (with 14 leave to amend) because it is clear from the face of the complaint that he has not exhausted 15 his administrative remedies. He states that his “[a]ppeal is being reviewed at the 3rd Level 16 [of] Review.” (Compl., Dkt. No. 5 at 1.) 17 An action must be dismissed unless the prisoner has exhausted available 18 administrative remedies before he filed suit. See McKinney v. Carey, 311 F.3d 1198, 1199 19 (9th Cir. 2002); see also Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (where 20 administrative remedies not exhausted before prisoner sends complaint to court, action will 21 be dismissed even if exhaustion is completed by time complaint actually is filed by clerk). 22 But “a prisoner can cure [exhaustion] deficiencies through later filings, regardless of when 23 he filed the original action” because “[e]xhaustion requirements apply based on when a 24 plaintiff files the operative complaint.” Saddozai v. Davis, 35 F.4th 705, 708 (9th Cir. 25 2022) (citations and internal quotation marks omitted). Thus, a prisoner who files an 26 original complaint (when he had not exhausted his remedies) and then files an amended 27 complaint (when he had fully exhausted his remedies) satisfies the exhaustion requirement 1 Accordingly, the complaint is DISMISSED with leave to file an amended complaint 2 on or before May 1, 2025. In the amended complaint, Lockett must make it clear whether 3 he has exhausted his administrative remedies. If he has not, he must make that clear. 4 The amended complaint must include the caption and civil case number used in this 5 || order (24-07493 WHO (PR)) and the words FIRST AMENDED COMPLAINT must be 6 || written on the first page. The amended complaint must also appear on this Court’s form, a 7 || copy of which will be sent to him. Because an amended complaint completely replaces the 8 || previous complaints, plaintiff must include in his first amended complaint all the claims he 9 || wishes to present and all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 10 || F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the prior 11 || complaint by reference. Failure to file a proper amended complaint by May 1, 2025 may 2 result in dismissal of this action under Federal Rule of Civil Procedure 41(b) for failure to 5 13 prosecute. IT IS SO ORDERED. || Dated: March 26, 2025 | i . \f CE

‘6 LLIAM ORRICK 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28