Murschel v. Paramo

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LANCE MURSCHEL, Case No.: 3:17-cv-1142-BTM-AGS CDCR #P-04895, 12 ORDER DENYING PLAINTIFF’S Plaintiff, 13 MOTION FOR STAY AND vs. ABEYANCE 14

15 [ECF No. 81] DANIEL PARAMO, et al., 16 Defendant. 17 18 19 20 21 Lance Murschel (“Plaintiff”), currently incarcerated at the California Medical 22 Facility (“CMF”) located in Vacaville, California, is proceeding pro se and in forma 23 pauperis (“IFP”) in this civil rights action filed pursuant to 42 U.S.C. § 1983. Currently 24 before this Court is Plaintiff’s “Motion [to] Stay [and] Abeyance.” (ECF No. 8.) 25 Defendants have filed an Opposition to Plaintiff’s Motion. (ECF No. 83) 26 Plaintiff seeks this stay in order to “exhaust all administrative remedies.” (Id. at 1.) 27 However, there is no pending motion arguing that Plaintiff failed to exhaust his 28 administrative remedies prior to filing this action. In fact, the Court denied Defendant 1 Melton’s Motion to Dismiss Plaintiff’s retaliation claims for allegedly failing to exhaust 2 his administrative remedies. (See Mar. 10, 2020 Order, ECF No. 54 at 9-10.) 3 If Plaintiff has not, in fact, exhausted his administrative remedies as to any other 4 claims, the Prison Litigation Reform Act (“PLRA”) does not permit post filing exhaustion. 5 See 42 U.S.C. § 1997e(a) (“No action shall be brought … until such administrative 6 grievances as are available are exhausted.”). The Ninth Circuit has held that “a district 7 court must dismiss a case without prejudice when there is no presuit exhaustion, even if 8 there is exhaustion while suit is pending.” Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 9 2005); McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (“Congress could have 10 written a statute making exhaustion a precondition to judgment, but it did not. The actual 11 statute makes exhaustion a precondition to suit.”). The Court will not dismiss Plaintiff’s 12 action at this time because there is no record before the Court that Plaintiff has not 13 completely exhausted his administrative remedies. 14 Plaintiff also informs the Court that he has brain cancer. (See Pl.’s Mot. at 1.) 15 Plaintiff has attached a memorandum regarding his classification committee hearing dated 16 April 4, 2013 and what appear to be some of his medical records in support of his Motion. 17 (Id. at 3.) While Plaintiff does not have any “law training,” he nonetheless has appeared 18 capable of legibly articulating the facts and circumstances relevant to his claims, which are 19 typical and not legally “complex.” Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 20 1103 (9th Cir. 2004). Plaintiff claims to have lost the assistance of another inmate but he 21 does not indicate when that happened and specifically how it impacts his ability to continue 22 to litigate this matter. 23 Defendants, in their Opposition, indicate that this “action has proceeded through the 24 pleading stage and the parties successfully met and conferred to prepare a Joint Discovery 25 Plan.” (Defs.’ Opp’n at 2.) Moreover, they argue that Plaintiff has “demonstrated his 26 ability to litigate his claims despite his lack of legal training and assistance, and staying 27 proceedings would prevent the parties from efficiently resolving this action.” (Id.) 28 1 Throughout these proceedings, the Court has liberally granted Plaintiff multiple 2 ||extensions of time. If there is a pending matter and Plaintiff requires additional time to 3 ||respond, the Court will consider future requests for additional time so long as Plaintiff is 4 ||able to show good cause. 5 For all of the above reasons, the Court does not find that a stay is warranted at this 6 || time and DENIES Plaintiff’s Motion for Stay and Abeyance. (ECF No. 81.) 7 IT IS SO ORDERED. 8 || Dated: December 7, 2020 9 □□ Honorable Barry Ted Moskov 10 United States District Judge 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9