May 4, 2015
DARLENE LOUISE TOMEL, Plaintiff,
STATE OF HAWAII, et al., Defendants.
ORDER DIRECTING SUPPLEMENTAL BRIEFING ORDER DIRECTING SUPPLEMENTAL BRIEFING
Leslie E. Kobayashi United States District Judge
Defendants Mildred Takahashi, Glenn Morrison, M.D., and Unknown Women’s Community Correctional (“WCCC”) Officials have moved for summary judgment asserting Plaintiff Darlene Tomel failed to exhaust available prison administrative remedies before she commenced this suit on or about January 12, 2012, when she filed her original Complaint. See 42 U.S.C. § 1942e(a).
Defendants are ordered to file a supplemental memorandum discussing the import of Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010) and Cano v. Taylor, 739 F.3d 1214 (9th Cir. 2014), which addressed the operative date for exhaustion purposes when an amended complaint is filed in a prisoner actions. The Ninth U.S. Court of Appeals generally holds that exhaustion must occur prior to filing the original complaint. See McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). The Ninth Circuit modified McKinney’s holding as it applied to amended pleadings in Rhodes and Cano, however. See Rhodes, 621 F.3d at 1006; Cano, 739 F.3d at 1220. Rhodes holds that new claims asserted in an amended complaint, that occurred after the original complaint is filed, need only be exhausted before the amended complaint is filed. 621 F.3d at 1006. Expanding on this, Cano holds that even new claims that took place before the original complaint was filed are viable, as long as they are exhausted prior to filing the amended complaint. See 739 F.3d at 1220.
Defendants are directed to discuss Rhodes’ and Cano’s application to Plaintiff’s exhaustion of remedies, in light of the Third Amended Complaint’s filing on May 21, 2014. See Doc. No. 43. Defendants shall address any pertinent grievances Plaintiff submitted between January 12, 2012, when she filed the original complaint, and her release on parole on February 14, 2013, and provide such grievances and their responses, whether decided before or after Plaintiff’s release. Defendants shall also provide legible copies of each step of any grievance referred to in the Motion, concise statement of facts, or supplemental memorandum that includes the grievance’s control number. Finally, Defendants shall submit a copy of Plaintiff’s July 31, 2009, grievance against Dr. Morrison, which is quoted in Doc. No. 62-1, PageID #492, (Liu Aff.), or a copy of the document relied on and an explanation why the grievance is not available. Plaintiff is NOTIFIED that her claims against Defendant Takahashi for allegedly failing to protect her from inmate Lisa Kursh’s threats were dismissed with prejudice on March 12, 2012, for failure to state a claim. See Order, Doc. No. 15, PageID #176. The Ninth Circuit did not reverse that decision, and this claim remains dismissed. See Mem. Op, Doc. No. 36. Plaintiff is also NOTIFIED that, based on her July 31, 2009, grievance regarding Dr. Morrison’s alleged denial of medical care, Doc. No. 62-1, PageID #492, (Liu Aff.), her claim against Dr. Morrison appears timebarred and the court is considering dismissing it as such.
Defendants shall submit their supplemental memorandum addressing the issues discussed above on or before May 15, 2015. Plaintiff shall file her Opposition to Defendants’ Motion for Summary Judgment on or before June 12, 2015. Plaintiff is reminded that the prison mailbox rule no longer applies to her filings because she has been released, and that she must comply with the Federal Rules of Civil Procedure and the Local Rules for the District of Hawaii when prosecuting this action. Defendants may file their Reply on or before June 26, 2015.
IT IS SO ORDERED.