Sekou Kwane Thompson v. Kathleen Allison, et al.

• Court: District Court, N.D. California
• Decided: December 3, 2025
• Docket: 4:23-cv-05079
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SEKOU KWANE THOMPSON, Case No. 23-cv-05079-HSG

8 Plaintiff, ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS; 9 v. DENYING AS MOOT REQUEST TO STAY DISCOVERY; DENYING LEAVE 10 KATHLEEN ALLISON, et al., TO FILE THIRD AMENDED COMPLAINT 11 Defendants. Re: Dkt. Nos. 29, 30 12

13 14 Plaintiff, an incarcerated person housed at Correctional Training Facility (“CTF”), has 15 filed a pro se civil rights action, alleging that CTF correctional officers Martin Magana, Oliva 16 Castro, Don Zypel Igacio, A. Pelayo, Oscar Covarrubias, Jo-ann Crews, and Michael Hicks were 17 deliberately indifferent to his safety when they knowingly housed him with a known violent 18 prisoner. Dkt. Nos. 20, 21. This order addresses: (1) Defendants’ motion for judgment on the 19 pleadings for failure to exhaust administrative remedies, Dkt. No. 29, and related request for 20 judicial notice, Dkt. No. 29-1; (2) Defendants’ request to stay merits-based discovery pending 21 resolution of the motion for judgment on the pleadings, Dkt. No. 30; and (3) Plaintiff’s request for 22 leave to file a third amended complaint, Dkt. No. 31 at 2. 23 BACKGROUND 24 I. Operative Complaint (Dkt. No. 20) 25 In the operative complaint, Plaintiff makes the following relevant allegations. On October 26 4, 2021, defendants Magana, Ignacio, and Castro put in a bed request for inmate Bankhead to be 27 housed in Plaintiff’s cell; defendant Pelayo accepted the request; defendants Covarrubias and 1 level I cell. Inmate Bankhead is a known violent Level II prisoner. Placing inmate Bankhead in 2 Plaintiff’s cell was a violation of prison policy and procedures, which require prison officials to 3 evaluate all factors, including the inmate’s history of in-cell assaults or violence, when making, 4 reviewing or approving housing requests. It was “obvious” to Defendants that inmate Bankhead 5 posed a risk to Plaintiff’s safety due to inmate Bankhead’s recent fight with another prisoner and 6 because inmate Bankhead was “known for fighting.” On October 28, 2021, Plaintiff was violently 7 attacked and battered by inmate Bankhead. See generally Dkt. No. 20. 8 In the operative complaint, Plaintiff states that he exhausted administrative remedies by 9 filing Grievance No. 144510. He states that Grievance No. 144510 bypassed the first level; was 10 rejected at the second level on July 27, 2021; and was denied at the third and final level on 11 October 15, 2021. Dkt. No. 20 at 2. 12 II. Grievance No. 144510 13 On July 25, 2021, Plaintiff submitted Grievance No. 144510. This grievance challenged 14 the June 30, 2021 Unit Classification Committee (“UCC”) decision to transfer Plaintiff to 15 Correctional Training Facility, Level II housing. The grievance stated that CTF Level II’s security 16 level was inconsistent with Plaintiff’s placement score and that Plaintiff’s preferred action was to 17 be transferred to California Institute for Men, Level I housing, so that he could meet the Board of 18 Parole Hearing (“BPH”)’s recommendation that he participate in a vocational program, 19 specifically underwater welding. The grievance further stated that, alternatively, Plaintiff sought 20 to be placed at Sierra Conservation Center. The grievance argued that these placements would be 21 consistent with the CDCR’s programming and needs and Plaintiff’s placement score, and allow 22 for safety and security. The grievance requested that the following actions be taken: that Plaintiff 23 be housed at either CIM Level I or Sierra Conservation Center; that Captain Ortega be 24 reprimanded and retrained regarding the CDCR’s missions; and that Plaintiff be compensated for 25 any future harm he might suffer as a result of the UCC’s “invalid recommendation and/or action.” 26 Dkt. No. 29-3 at 1-5. 27 On July 27, 2021, CTF’s Office of Grievances acknowledged receipt of Grievance No. 1 Your claim concerning Offender Classification; Issue Arising from a UCC, ICC or DRB that is NOS is being rejected by Office of Grievances for the reason(s) indicated below: 2 Your claim concerns an anticipated policy, decision, action, condition or omission by the 3 Department or departmental staff, generally meaning the action has not happened yet. Once a decision or action has taken place and if you are still dissatisfied, you may file a 4 new grievance.

5 Your claim regarding Unit Classification Committee (UCC)/Institution Classification Committee (ICC) Action initiated 6/28/21, in which committee recommended you be 6 transferred was reviewed and deemed to be meet [sic] rejection criteria as your Claim concerns an anticipated policy, decision, action, condition, or omission pursuant to Title 7 15, Section 3487(a)(2). The transferred recommendation is pending review by the Classification Staff Representative (CSR) at this time; therefore, the action is not yet 8 finalized. Once case is reviewed by the CSR, you may submit a NEW CDCR 602 grievance to the CTF Office of Grievance if you deem the issue still exists. 9 This serves as your response by the Office of Grievances. If you are dissatisfied with this 10 response, you may appeal the rejection decision to CDCR’s Office of Appeals.

11 Do not resubmit this claim to the Office of Grievances at Correctional Training Facility. 12 Dkt. No. 29-4 at 2. 13 Plaintiff appealed the rejection to the Office of Appeals. Dkt. No. 29-5 at 2. On October 14 15, 2021, the Office of Appeals denied the grievance:

15 III. REASONING AND DECISION

16 The Office of Appeals concurs that the institution appropriately rejected the claim at time of receipt. [Plaintiff] submitted Log #144510 on 7/25/2021, prior to the Classification 17 Services Representative’s review and approval on 8/3/2021. Therefore, the claim is denied as anticipatory. Subsequently, based upon institutional needs for compaction, [Plaintiff] 18 was moved to the CTF Level II Facility.

19 IV. REMEDY

20 Your claim has been denied. Therefore, there is no applicable remedy.

21 Decision: Denied

22 After a thorough review of all documents and evidence available at the time of this written decision, it is the order of the Office of Appeals that this claim is denied. This decision 23 exhausts the administrative remedies available to the claimant within CDCR. 24 Dkt. No. 29-5 at 2. This decision identified the grievance category as “Offender Classification” 25 and the sub-category as “Issue Arising from a UCC, ICC, or DRB that is NOS.” 26 // 27 // 1 DISCUSSION 2 I. Motion for Judgment on the Pleadings 3 A. Legal Standard 4 “After the pleadings are closed—but early enough not to delay trial—a party may move for 5 judgment on the pleadings.” Fed. R. Civ. P. 12(c). Granting a judgment on the pleadings is 6 proper when, “taking all the allegations in the pleadings as true, the moving party is entitled to 7 judgment as a matter of law.” Gregg v. Haw., Dep’t of Pub. Safety, 870 F.3d 883, 887 (9th Cir. 8 2017) (quoting Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir. 1998)). “Because a Rule 9 12(c) motion is functionally identical to a Rule 12(b)(6) motion, the same standard of review 10 applies to motions brought under either rule.” Id. (quoting Cafasso v. Gen. Dynamics C4 Sys., 11 Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) ) (internal quotation marks omitted). 12 “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable 13 legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela 14 Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008); see also Fed. R. Civ. P. 8(a) (requiring that 15 complaint contain “short and plain statement of the claim showing that the pleader is entitled to 16 relief”). To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to 17 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim 18 is facially plausible when a plaintiff pleads “factual content that allows the court to draw the 19 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 20 556 U.S. 662, 678 (2009). In reviewing the plausibility of a complaint, courts “accept factual 21 allegations in the complaint as true and construe the pleadings in the light most favorable to the 22 nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 23 2008). However, a court need not accept as true allegations that are merely conclusory, 24 unwarranted deductions of fact, or unreasonable inferences; or allegations that contradict matters 25 properly subject to judicial notice. In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 26 2008). In assessing the sufficiency of the pleadings, “courts must consider the complaint in its 27 entirety, as well as other sources courts ordinarily examine . . . in particular, documents 1 notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). 2 B. Request for Judicial Notice (Dkt. No. 29-1) 3 1. Legal Standard 4 As a general rule, district courts may not consider material outside the pleadings when 5 assessing the sufficiency of a complaint under Fed. R. 12(b)(6). Lee v. City of Los Angeles, 250 6 F.3d 668, 688 (9th Cir. 2001). However, there are two exceptions to this rule: the incorporation- 7 by-reference doctrine and judicial notice under Fed. R. Evid. 201. Khoja v. Orexigen 8 Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). Both of these procedures permit district 9 courts to consider materials outside a complaint without converting a motion to dismiss into a 10 summary judgment. Id. at 998; see also Lee, 250 F.3d at 688-89. 11 The incorporation by reference doctrine is a judicially created doctrine that allows a court 12 to consider certain documents as though they were part of the complaint itself. Khoja, 899 F.3d at 13 1002. This doctrine is to prevent a plaintiff from cherry-picking certain portions of documents 14 that support his claims, while omitting portions that weaken his claims. Id. Incorporation by 15 reference is appropriate “if the plaintiff refers extensively to the document or the document forms 16 the basis of plaintiff’s claim.” Id. at 1002. However, “the mere mention of the existence of a 17 document is insufficient to incorporate the contents” of a document. Id. at 1002. Under the 18 incorporation-by-reference doctrine, a court may consider evidence on which the complaint 19 “necessarily relies” if: (1) the complaint refers to the document; (2) the document is central to the 20 plaintiff’s claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) 21 motion. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). If these conditions are met, the 22 court may treat such a document as part of the complaint, and may assume the truth of the 23 document’s contents for purposes of a motion to dismiss under Rule 12(b)(6). Daniels-Hall v. 24 Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). However, while a court “may assume [an 25 incorporated document’s] contents are true for purposes of a motion to dismiss . . . it is improper 26 to assume the truth of an incorporated document if such assumptions only serve to dispute facts 27 stated in a well-pleaded complaint.” Khoja, 899 F.3d at 1002. 1 reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; 2 or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably 3 be questioned.” Fed. R. Evid. 201(b). 4 In Khoja, the Ninth Circuit clarified the judicial notice rule and incorporation by reference 5 doctrine, noting that a court may take “judicial notice of matters of public record,” but “cannot 6 take judicial notice of disputed facts contained in such public records.” Khoja, 899 F.3d at 999 7 (citation and quotations omitted). The Ninth Circuit has clarified that if a court takes judicial 8 notice of a document, it must specify what facts it judicially notices from the document. Id. at 9 999. Further, “[j]ust because the document itself is susceptible to judicial notice does not mean 10 that every assertion of fact within that document is judicially noticeable for its truth.” Id. As an 11 example, the Ninth Circuit held that for a transcript of a conference call, the court may take 12 judicial notice of the fact that there was a conference call on the specified date, but may not take 13 judicial notice of a fact mentioned in the transcript, because the substance “is subject to varying 14 interpretations, and there is a reasonable dispute as to what the [document] establishes.” Id. at 15 999–1000. 16 2. Analysis 17 Defendants have requested that the Court take judicial notice of the existence and contents 18 of Grievance No. 144150; and the existence and contents of the denials of Grievance No. 144150 19 by the CTF Office of Grievances and by the Office of Appeals. Dkt. No. 29-1. Defendants argue 20 that judicial notice is appropriate because the existence and contents of these documents are not 21 subject to reasonable dispute; because these documents were incorporated by reference into 22 Plaintiff’s complaint; and because inmate grievances are public records subject to judicial notice. 23 Id. 24 The Court GRANTS Defendants’ request for judicial notice for the following reasons. 25 First, the operative complaint incorporates by reference Grievance No. 144150 and the subsequent 26 denials. The complaint identifies Grievance No. 144150 as the grievance that satisfied Plaintiff’s 27 requirement under the Prison Litigation Reform Act (“PLRA”) to exhaust administrative remedies 1 144150 is a record of a state agency and its existence and contents are not subject to reasonable 2 dispute. See City of Sausalito v. O’Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004) (“We may take 3 judicial notice of a record of a state agency not subject to reasonable dispute.”). Third, Plaintiff 4 does not dispute the existence or contents of the copy of Grievance No. 144150 and the related 5 denials that are attached to the request for judicial notice. Marder, 450 F.3d at 448. The Court 6 therefore takes judicial notice of (1) the existence and the contents of Grievance No. 144150; (2) 7 the July 27, 2021 rejection letter from Correctional Training Facility’s Office of Grievances; and 8 (3) the October 15, 2021 denial letter from the Office of Appeal, but does not assume the truth of 9 the contents of any of these documents. 10 C. PLRA Exhaustion Requirement 11 The Prison Litigation Reform Act (“PLRA”) sets forth the requirement that “[n]o action 12 shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal 13 law, by a prisoner confined in any jail, prison, or other correctional facility until such 14 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s 15 exhaustion requirement is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). All available 16 remedies must be exhausted, and those remedies “need not meet federal standards, nor must they 17 be ‘plain, speedy, and effective.’” Id.; see also Booth v. Churner, 532 U.S. 731, 739-41 & n.5 18 (2001). Section 1997e(a) requires “proper exhaustion” of available administrative remedies. 19 Woodford v. Ngo, 548 U.S. 81, 93 (2006). Proper exhaustion requires the incarcerated person to 20 use all steps of the administrative process and comply with “deadlines and other critical procedural 21 rules.” Id. at 90. Even when the incarcerated person seeks relief not available in grievance 22 proceedings, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. If an incarcerated 23 person’s grievance does not comply with a procedural rule but prison officials decide it on the 24 merits anyway at all available levels of administrative review, it is exhausted. Reyes v. Smith, 810 25 F.3d 654, 656, 658 (9th Cir. 2016) (plaintiff’s claim exhausted as to prison doctors named in 26 federal action where grievance plainly put prison officials on notice of nature of wrong alleged in 27 federal action – denial of pain medication by defendant doctors – and prison officials easily 1 834, 840 (9th Cir. 2014) (claim properly exhausted where inmate described nature of wrong and 2 identified defendant as responding officer who deliberately applied pressure to inmate’s ankle to 3 inflict pain). 4 Compliance with prison grievance procedures is all that is required by the PLRA to 5 “properly exhaust.” Jones v. Bock, 549 U.S. 199, 217-18 (2007). The level of detail necessary in 6 a grievance to comply with the grievance procedures will vary from system to system and claim to 7 claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper 8 exhaustion. Id. at 218. Where a prison’s grievance procedures do not specify the level of factual 9 specificity required in the grievance, “‘a grievance suffices if it alerts the prison to the nature of 10 the wrong for which redress is sought.’” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) 11 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). The grievance need not include 12 legal terminology or legal theories unless they are necessary to provide notice of the harm being 13 grieved. Id. Nor must a grievance include every fact necessary to prove each element of an 14 eventual legal claim. Id. The purpose of a grievance is to alert the prison to a problem and 15 facilitate its resolution, not to lay groundwork for litigation. Id. The grievance should include 16 sufficient information “to allow prison officials to take appropriate responsive measures.” 17 Id. (citation and internal quotation omitted) (no exhaustion where grievance complaining of upper 18 bunk assignment failed to allege, as complaint did, that nurse had ordered lower bunk but officials 19 disregarded that order). 20 There is an exception to the mandatory exhaustion requirement, namely, the unavailability 21 of administrative remedies. Ross v. Blake, 578 U.S. 632, 642 (2016) (“An inmate must exhaust 22 available remedies, but need not exhaust unavailable ones.”) (quoting 42 U.S.C. § 1997(e)(a)). 23 There are “three kinds of circumstances in which an administrative remedy, although officially on 24 the books, is not capable of use to obtain relief.” Ross, 578 at 643. First, an administrative 25 procedure is unavailable when “it operates as a simple dead end—with officers unable or 26 consistently unwilling to provide any relief to aggrieved inmates.” Id. Second, “an administrative 27 scheme might be so opaque that it becomes, practically speaking, incapable of use. In this 1 navigate it.” Id. at 643-44. Third, an administrative remedy is unavailable when “prison 2 administrators thwart inmates from taking advantage of a grievance process through machination, 3 misrepresentation, or intimidation.” Id. at 643. 4 Failure to exhaust under the PLRA is an affirmative defense that the defendant must plead 5 and prove. Jones, 549 U.S. at 216. The defendant’s burden is to prove that there was an available 6 administrative remedy, and that the prisoner did not exhaust that available administrative remedy. 7 Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014), abrogated in part on other grounds by Perttu 8 v. Richards, 605 U.S. 460, 475 (2025). Once the defendant has carried that burden, the burden 9 shifts to the incarcerated person to come forward with evidence showing that there is something in 10 his particular case that made the existing and generally available administrative remedies 11 effectively unavailable to him. Id. That is, the burden shifts to the incarcerated person to come 12 forward with evidence showing that there is something in his particular case that made the existing 13 and generally available administrative remedies effectively unavailable to him. Id. The ultimate 14 burden of proof remains with the defendant. Id. If undisputed evidence viewed in the light most 15 favorable to the incarcerated person shows a failure to exhaust, a defendant is entitled to summary 16 judgment under Fed. R. Civ. P. 56. Id. at 1166. But if material facts are disputed, summary 17 judgment should be denied, and the district judge rather than a jury should determine the facts in a 18 preliminary proceeding. Id. Defendants generally should raise the defense in a motion for 19 summary judgment pursuant to Rule 56, and then produce evidence proving a plaintiff’s failure to 20 exhaust. Albino, 747 F.3d at 1166. However, “[i]n the rare event that a failure to exhaust is clear 21 on the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Id. 22 When an exhaustion claim shares common factual issues with the merits of the claims or 23 defenses, and these issues would be subject to the Seventh Amendment right to a jury trial, then 24 the jury must be given the opportunity to decide the issues of fact raised in the exhaustion claim. 25 Perttu, 605 U.S. at 471-72, 479. Generally speaking, trial courts resolve equitable claims and 26 juries resolve legal claims, but judges may not resolve equitable claims first if doing so could 27 prevent legal claims from getting to the jury. Id. at 471-72. The trial court’s discretion in 1 limited and must, wherever possible, be exercised to preserve jury trial.” Id at 472. 2 D. Analysis 3 Defendants have filed a motion for judgment on the pleadings. Dkt. No. 29. Plaintiff has 4 filed an opposition, Dkt. No. 31; and Defendants have filed a reply, Dkt. No. 32. 5 Defendants argue that they are entitled to judgment on the pleadings because, from the face 6 of the operative complaint and judicially noticeable documents, it is clear that (1) administrative 7 remedies were available to Plaintiff for his Eighth Amendment claim that Defendants were 8 deliberately indifferent to his safety when they housed inmate Bankhead in Plaintiff’s cell; and 9 (2) Plaintiff did not exhaust these remedies. In the operative complaint, Plaintiff identifies 10 Grievance No. 144510 as exhausting his administrative remedies. Dkt. No. 20 at 2. Defendants 11 argue that this grievance does not exhaust the Eighth Amendment claim raised in this action 12 because this grievance was filed prior to the events that gave rise to Plaintiff’s Eighth Amendment 13 claim, concerns a June 30, 2021 classification committee hearing that recommended his transfer to 14 CTF, does not raise the cellmate attack or safety issues raised in this action, and does not identify 15 or concern the named defendants. See generally Dkt. No. 29 at 8-9. Plaintiff opposes the motion 16 for judgment on the pleadings, arguing that Defendants have filed a waiver of reply and request 17 for jury trial pursuant to 42 U.S.C. § 1997e(g); and that the Court issued an order of service on 18 March 3, 2025, which allowed the parties to conduct discovery and set a dispositive motion 19 deadline. See generally Dkt. No. 31. 20 The Court GRANTS Defendants’ motion for judgment on the pleadings. This case 21 presents the “rare event” where the failure to exhaust is clear on the face of the operative 22 complaint and from judicially noticeable documents. Albino, 747 F.3d at 1166 (“In the rare event 23 that a failure to exhaust is clear on the face of the complaint, a defendant may move for dismissal 24 under Rule 12(b)(6)”). Grievance No. 144510 does not, and cannot, exhaust Plaintiff’s Eighth 25 Amendment claim regarding the October 4, 2021 decision to place inmate Bankhead in Plaintiff’s 26 cell because that grievance was filed prior to the decision regarding Bankhead. Grievance No. 27 144510 was submitted on July 25, 2021, two months prior to the October 4, 2021 decision. In 1 claim raised herein. Grievance No. 144510 concerns a June 30, 2021 UCC housing 2 recommendation that Plaintiff be transferred to Correctional Training Facility Level II, whereas 3 this action concerns the October 2021 decision to place inmate Bankhead in Plaintiff’s cell. 4 Plaintiff does not dispute that administrative remedies were available to him, or that Grievance 5 No. 144510 does not raise, much less exhaust, the Eighth Amendment claim alleged in this action. 6 In addition, the factual issues relevant to the exhaustion issue (whether Grievance No. 144510, 7 submitted on or about July 25, 2021, grieves the October 4, 2021 placement of inmate Bankhead 8 in his cell, and whether administrative remedies were available to him during the relevant time 9 period) are not intertwined with the factual issues relevant to the Eighth Amendment claim 10 (whether Defendants placed inmate Bankhead in Plaintiff’s cell, knowing that the placement 11 exposed Plaintiff to a substantial risk of serious harm). 12 Plaintiff’s arguments in his opposition misunderstand the waiver of reply and the Court’s 13 screening and scheduling order. A waiver of reply does not waive the affirmative defense of a 14 failure to exhaust administrative remedies. 42 U.S.C. § 1997e(g) provides that in cases governed 15 by the PLRA, a defendant may file a waiver of reply in lieu of an answer, and that such waiver 16 does not constitute an admission of the allegations contained in the complaint. 42 U.S.C. § 17 1997e(g); Jones, 549 U.S. at 213-14 (“unlike in the typical civil case, defendants do not have to 18 respond to a complaint covered by the PLRA until required to do so by the court, and waiving the 19 right to reply does not constitute an admission of the allegations in the complaint”). The Court’s 20 screening order finding that the operative complaint stated a cognizable legal claim and setting a 21 briefing schedule did not preclude a motion for judgment on the pleadings or a motion raising 22 exhaustion of affirmative remedies. 23 Accordingly, for the reasons set forth above, the Court DISMISSES the operative 24 complaint for failure to exhaust administrative remedies. 25 II. Request to Stay Discovery and File Third Amended Complaint 26 The Court DENIES as moot Defendants’ request to stay merits-based discovery pending 27 an order on the motion for judgment on the pleadings. Dkt. No. 30. 1 No. 31 at 2. This request was not accompanied by a proposed third amended complaint, as 2 required by N.D. Cal. L.R. 10-1. N.D. Cal. L.R. 10-1 (“Any party filing or moving to file an 3 amended pleading must reproduce the entire proposed pleading and may not incorporate any part 4 of a prior pleading by reference.”). In addition, it is unclear how a third amended complaint could 5 cure the exhaustion issue. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (action 6 must be dismissed unless prisoner exhausted available administrative remedies before he filed 7 suit); see also Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (where administrative 8 remedies not exhausted before prisoner sends complaint to court, action will be dismissed even if 9 exhaustion is completed by time complaint actually is filed by clerk). The Court DENIES 10 Plaintiff’s request for leave to file a third amended complaint without prejudice to Plaintiff re- 11 filing this request and attaching the required proposed third amended complaint. 12 Any renewed request for leave to file a third amended complaint must be filed within 13 twenty-eight (28) days from the date of this order. If the Court does not receive a request for 14 leave to file a third amended complaint within the deadline provided, the Court will dismiss this 15 action without further notice to Plaintiff for lack of an operative complaint. 16 CONCLUSION 17 For the reasons set forth below, the Court ORDERS as follows. 18 1. The Court GRANTS Defendants’ motion for judgment on the pleadings, Dkt. No. 19 29; and GRANTS Defendants’ related request for judicial notice, Dkt. No. 29-1. 20 2. The Court DENIES as moot Defendants’ request to stay merits-based discovery 21 pending an order on the motion for judgment on the pleadings. Dkt. No. 30. 22 3. The Court DENIES Plaintiff’s request for leave to file a third amended complaint. 23 Dkt. No. 31 at 2. This denial is without prejudice to Plaintiff re-filing this request, with a 24 proposed third amended complaint attached to the request. Any renewed request to file a third 25 amended complaint must be filed within twenty-eight (28) days from the date of this order. If 26 the Court does not receive a request for leave to file a third amended complaint by the deadline 27 provided, the Court will dismiss this action without further notice to Plaintiff for lack of an 1 This order terminates Dkt. Nos. 29, 30. 2 IT IS SO ORDERED. 3 Dated: 12/3/2025

HAYWOOD S. GILLIAM, JR. 5 United States District Judge 6 7 8 9 10 11 a 12

13 14

15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28