(PC) Wheaton v. McComber

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GENE PAUL WHEATON, No. 2:22-cv-01434-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 J. MCCOMBER, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff has filed a motion to stay the proceeding for 180 days “pending 19 exhaustion of two Defendants and one related claim,” and so that his “jail house lawyer” has time 20 to review the record and draft an amended complaint.1 ECF No. 20 at 1, 3. The court construes 21 plaintiff’s motion as a request for additional time and grants the motion in part. Plaintiff shall file 22 an amended complaint within forty-five days of this order’s entry. 23 Accordingly, it is hereby ORDERED that: 24 1 Plaintiff moves to stay this proceeding so that he can exhaust “two Defendants and one 25 related claim.” If plaintiff is referring to exhausting his administrative remedies, he is reminded that exhaustion of administrative remedies is a pre-condition to filing suit and he cannot stay this 26 action in order to exhaust his administrative remedies. See McKinney v. Carey, 311 F.3d at 1200- 27 01 (if a prisoner has not exhausted his administrative remedies before filing his federal suit, the court must dismiss the action without prejudice to the prisoner filing a new action after he has 28 completed his administrative remedies). 1 1. Plaintiff's motion to stay, ECF No. 20, is construed as a motion for an extension of 2 | time and is granted in part. 3 2. Plaintiff shall file an amended complaint within forty-five days of issuance of this 4 | order. 5 6 IT IS SO ORDERED.

Dated: _ August 24, 2023 q-—— 8 JEREMY D. PETERSON 9 UNITED STATES MAGISTRATE JUDGE

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