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26 Defendants Providence, O’Ran, Mirich, Jako, Veal, Allen, and Grannis. 1

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

PATRICK RONALD HOLLEY,

Plaintiff, No. CIV S-04-1425 GEB PAN P

vs.

CALIFORNIA DEPARTMENT

OF CORRECTIONS, et al.,

Defendants. FINDINGS & RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

42 U.S.C. § 1983. This matter is before the court on defendants’ motion to dismiss this action

pursuant to the unenumerated portion of Fed. R. Civ. P. 12(b) due to plaintiff’s failure to exhaust

his claims against several defendants named herein prior to suit.

PROCEDURAL BACKGROUND

Plaintiff filed this action on July 20, 2004. In his original complaint, plaintiff

claimed that defendant Herrera violated his rights under the Eighth Amendment by acting with

deliberate indifference to his serious medical needs, and retaliated against him for exercising his

First Amendment rights. Plaintiff further claims that the other named defendants ratified 1

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 The court also dismissed plaintiff’s Eighth Amendment claim for failure to state a claim 2

upon which relief might be granted.

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defendant Herrera’s alleged misconduct by participating at various levels of review in the denial

of plaintiff’s administrative grievance against defendant Herrera. 

On January 14, 2005, defendants brought a motion to dismiss in which they

contended, inter alia, that plaintiff had failed to exhaust administrative remedies with respect to

his claims that defendants Providence, O’Ran, Mirich, Jako, Veal, Allen, and Grannis had

conspired together and ratified defendant Herrera’s alleged unconstitutional conduct through

denial of plaintiff’s administrative grievances. On June 21, 2005, the magistrate judge issued

findings and recommendations recommending dismissal of plaintiff’s claims against those seven

defendants due to plaintiff’s failure to exhaust administrative remedies with respect to those

claims. On July 25, 2005, the district court adopted the findings and recommendations in full,

dismissed the claims against those seven defendants, and directed defendant Herrera to answer

plaintiff’s retaliation claim. 

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On August 4, 2005, plaintiff filed an amended complaint. On August 19, 2005,

defendant Herrera filed an answer which purported to be an answer to an amended complaint. 

On September 29, 2005, defendant Herrera filed an amended answer specifically directed to the

original complaint. On October 7, 2005, plaintiff filed a request to proceed on the first amended

complaint. 

On October 24, 2005, prior to any action by the court on his request to proceed on

the first amended complaint, plaintiff filed a proposed second amended complaint. In the

proposed second amended complaint, plaintiff alleged that following dismissal of his claims

against defendant Providence, O’Ran, Mirich, Jako, Veal, Allen, and Grannis he had exhausted

all “available” administrative remedies with respect to those claims and he therefore sought leave

to bring those claims in the second amended complaint. Defendants opposed the motion on the

ground, inter alia, that controlling precedent of the United States Court of Appeals for the Ninth

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26 McKinney v. Carey, 311 F.3d 1198 (9 Cir. 2002). 3 th

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Circuit precluded amendment to reinstate claims that were not exhausted prior to initiation of 3

this action.

By order filed January 20, 2006, the magistrate judge granted plaintiff’s motion to

proceed on the second amended complaint. In the order, the magistrate judge rejected

defendants’ contention that amendment was precluded by the decision announced in McKinney,

finding that “McKinney does not bar amendment to plead newly-exhausted claims.” (Order filed

January 20, 2006, at 2.) Defendants were directed to answer the second amended complaint

within twenty days. The instant motion to dismiss followed. 

ANALYSIS

At issue on this motion to dismiss is whether plaintiff can proceed in this action

on claims that were not administratively exhausted at the time he filed suit. That answer has

already been answered affirmatively in the order filed January 20, 2006. The first question that

must be resolved, therefore, is whether that order is the law of the case and, if so, whether it

should be followed for the remainder of this action.

 Under the “law of the case” doctrine, “a court is generally

precluded from reconsidering an issue that has already been

decided by the same court, or a higher court in the identical case.”

Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.) ( cert. denied508

U.S. 951, 113 S.Ct. 2443, 124 L.Ed.2d 661 (1993). The doctrine

is not a limitation on a tribunal's power, but rather a guide to

discretion. Arizona v. California, 460 U.S. 605, 618, 103 S.Ct.

1382, 1391, 75 L.Ed.2d 318 (1983). A court may have discretion

to depart from the law of the case where: 1) the first decision was

clearly erroneous; 2) an intervening change in the law has

occurred; 3) the evidence on remand is substantially different; 4)

other changed circumstances exist; or 5) a manifest injustice would

otherwise result. Failure to apply the doctrine of the law of the

case absent one of the requisite conditions constitutes an abuse of

discretion. Thomas v. Bible, 983 F.2d at 155.

U.S. v. Alexander, 106 F.3d 874, 876 (9 Cir. 1997). th

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4

The finding in the January 20, 2006 order that McKinney does not preclude

amendment to add newly-exhausted claims to a civil rights action is the law of the case for this

action. U.S. v. Alexander, supra. It appears to this court, however, that the January 20, 2006

order is clearly erroneous and for that reason should not be followed.

In McKinney, the court of appeals followed eight other circuit courts in holding

that dismissal of claims without prejudice is required when an inmate has failed to exhaust

administrative remedies as to those claims prior to suit. McKinney, at 1199-1200. The court

rejected the plaintiff’s contention that the action should be stayed to permit completion of

administrative exhaustion and specifically held that “[e]xhaustion subsequent to the filing of the

suit will not suffice” to satisfy the requirements of 42 U.S.C. § 1997e(a). The court of appeals

has reaffirmed this holding as recently as 2005. See Lira v. Herrera, 427 F.3d 1164, 1170 (9th

Cir. 2005) (citing McKinney) (“Also, a district court must dismiss a case without prejudice

‘when there is no presuit exhaustion,’ even if there is exhaustion while suit is pending.”) 

By its literal terms, McKinney did not address the question whether claims

dismissed as unexhausted during the pendency of an action can be added back in to the same

action through amendment of the complaint after completion of administrative exhaustion. The

court’s holding that post-suit exhaustion does not suffice to satisfy the requirements of 42 U.S.C.

§ 1997e(a), however, precludes that result. For these reasons, this court finds that the January 20,

2006 order permitting amendment was clearly erroneous. Plaintiff should not be permitted to

proceed in this action on claims that were not administratively exhausted at the time he filed this

action. See McKinney, supra. Accordingly, defendants’ motion to dismiss plaintiff’s claims

against defendants Providence, O’Ran, Mirich, Jako, Veal, Allen, and Grannis should be granted.

Defendants also contend that “in the second amended complaint Plaintiff has so

closely related his exhausted allegation with his unexhausted claims that the entire second

amended complaint should be dismissed.” (Motion to Dismiss, filed February 7, 2006, at 2.) In

substance, plaintiff’s claim against defendant Herrera is not so intertwined with plaintiff’s

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previously unexhausted claims that it too should be dismissed. Cf. Lira, supra. The question

remains, however, which complaint should be the operative pleading in this action.

Review of the record herein shows that plaintiff filed a first amended complaint

raising only claims against defendant Herrera. That first amended complaint was filed prior to

service of defendant’s answer and was therefore filed as of right. See Miles v. Department of

Army, 881 F.2d 777, 781 (9 Cir. 1989) (motion to dismiss is not a responsive pleading for th

purposes of Fed. R. Civ. P. 15); see also Fed. R. Civ. P. 15. 

The court is, however, required to screen all complaints filed by prisoners. See 28

U.S.C. § 1915A. The first amended complaint contains several state law claims against

defendant Herrera for his alleged denial of emergency medical treatment to plaintiff. In his

original complaint plaintiff alleged that defendant Herrera violated his rights under the Eighth

Amendment by acting with deliberate indifference to serious medical needs, and that said

deliberate indifference was retaliatory. In the findings and recommendation filed June 21, 2005,

the magistrate judge found that plaintiff had failed to state a cognizable Eighth Amendment

claim because “the complaint states immediately after plaintiff left Herrera’s office another

correctional officer escorted him to the medical clinic where he received appropriate treatment”

and that any delay in receiving treatment caused by Herrera’s alleged conduct did not “‘seriously

affect’ plaintiff’s medical condition.” (Findings and Recommendations, filed June 21, 2005, at

3.) The magistrate judge recommended dismissal of plaintiff’s Eighth Amendment claim, and

the district court adopted that recommendation in its July 25, 2005 order. Since this action will

not proceed on an Eighth Amendment claim, the court should decline to exercise jurisdiction

over any state law claim grounded in defendant Herrera’s alleged denial of appropriate medical

treatment to plaintiff. See 28 U.S.C. § 1367(c). For these reasons, this action should proceed

solely on the retaliation claim raised in plaintiff’s original complaint and answered by defendant

Herrera on September 29, 2005.

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

1. Defendants’ February 7, 2006 motion to dismiss be granted; and

2. This action proceed solely on the retaliation claim against defendant Herrera

raised in plaintiff’s original complaint and answered by said defendant on September 29, 2005.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned 

“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that

failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 

DATED: June 6, 2006.

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holl1425.mtd2

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