Opinion
No. 2:14-cv-2222-KJM-EFB P
09-24-2015
BERNARD L. SMITH, Plaintiff, v. HAWKINS, et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action brought under 42 U.S.C. § 1983. On July 28, 2015, defendant Hawkins filed a motion to dismiss. ECF No. 28. Rather than filing a response to that motion, plaintiff has filed a notice of change of address and a "Motion for immediate verification pro se legal materials." ECF Nos. 31, 32.
Plaintiff states in his filings that he does not have access to his complaint or the court's local rules. He also complains that he is limited to use of a pencil and does not have access to an ink pen. Plaintiff is hereby informed that he may prepare his pleadings using a pencil, so long as his pleadings are legible. In addition, the Clerk will be directed to serve upon plaintiff a copy of his complaint, the local rules, and the pending motion to dismiss.
Plaintiff also complains about his conditions of confinement at the Los Angeles County Men's Central Jail, where he was recently transferred. Claims based upon plaintiff's current conditions of confinement, however, cannot be adjudicated in this action, where they cannot be properly exhausted through the administrative appeals process. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam) and Rhodes v. Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010) (together holding that claims must be exhausted prior to the filing of the original or supplemental complaint); Jones v. Felker, No. CIV S-08-0096 KJM EFB P, 2011 U.S. Dist. LEXIS 13730, at *11-15 (E.D. Cal. Feb. 11, 2011); Fed. R. Civ. P. 20(a)(2) (multiple defendants may be joined in an action only where the suit regards "the same transaction, occurrence, or series of transactions or occurrences" or "any question of law or fact common to all defendants").
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of the Court shall serve upon plaintiff a copy of the December 24, 2014 complaint (ECF No. 19), the court's Local Rules, and defendant's July 28, 2015 motion to dismiss (ECF No. 28).DATED: September 24, 2015.
2. Within 30 days of the date of this order, plaintiff shall file either an opposition to the motion to dismiss or a statement of no opposition. Failure to comply with this order may result in a recommendation that this action be dismissed without prejudice.
3. The Clerk of the Court shall terminate docket number 32.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE