Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 Plaintiff, 11 vs. 12 Dora Schriro, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Keith Robert Barden, aka, Katherine Elizabeth Barden, ) ) ) ) ) ) ) ) ) ) ) No. CV 04-0138-PHX-EHC (GEE) ORDER IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

JDN

Plaintiff, a state prisoner, filed a Second Amended Complaint against various officials from the Arizona D epartment of Corrections (ADC) (Doc. #28). In light of the

Court 's prior dismissal of this action for failure to exhaust available administrative remedies as required under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), this amended pleading is improper and will be stricken. I. Procedural Background Plaintiff initiated this action in January 2004, under the name Keith Robert Barden (Doc. #1). Plaintiff then filed a First Amended Complaint in July 2004 (Doc. #7). In July 2005, Plaintiff filed a Notice of Change of Name indicting a name change to Katherine Eliz abet h Barden (Doc. #16). Plaintiff suffers from gender dysphoria, a serious psychiatric disorder characterized by strong cross-gender ident ificat ion that manifests in insistence that one is the other s ex and accompanied by significant distress with one's assigned gender. See M aggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997); Stedman's M edical

D ict ionary disorder (27th ed. 2000). Plaintiff alleged that Defendants failed to provide her

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medical treatment for gender dysphoria and harassed her and placed her in a hostile environment (Doc. #7). Upon screening the First Amended Complaint, the Court ordered Defendants to answer and they submitt ed a M otion to Dismiss for failure to exhaust available

adminis t rat ive remedies (Doc. ##8, 17). After the motion was fully briefed by the parties, the Court granted the motion and dismissed Plaint iff's First Amended Complaint because Plaintiff failed to pursue administrative remedies bey ond the informal inmate grievance step (Doc. #26). Judgment was entered and Plaintiff's action was dismissed without prejudice

in M ay 2006 (Doc. #27). O n F ebruary 1, 2007, Plaintiff filed a Second Amended Complaint against the same D efendants and alleged the same violations of her Eighth Amendment rights1 (Doc. #28). Plaintiff asserted that she has now exhausted all her available administrative remedies and she submitted cop ies of her Inmate Letter, grievance, and grievance appeal (Id., Attachs.). II. Exhaustion Regulation "No action shall be brought with respect t o prison conditions under [42 U.S.C. ¶ 1983], or any other Federal law, by a p ris oner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. ¶ 1997e(a). Consequently, a prisoner mus t exhaust available administrative remedies before filing any papers in federal court and the prisoner is not entitled to a stay of judicial proceedings in order to exhaust. Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006); M cKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The Court dismissed Plaintiff's First Amended Complaint for failure to comply with the exhaustion statute. The fact that Plaintiff appears t o have now completed the Plaintiff's Second A mended

administrative appeal process does not save the action.

Complaint is t herefore improper, and the Court will strike it. But because Plaintiff's First

Plaintiff sues ADC Director Dora Schriro, Dr. Pam M cCauley, M s. Sherry Goldsmith, 28 Physician's Assistant Holiday, mental health provider Dr. Alexander, mental health associate Nurse Linda Griffin, and John and Jane Does (Doc. #28 at 2-2A). -2Case 2:04-cv-00138-EHC-GEE Document 29 Filed 02/12/2007 Page 2 of 3
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Amended Complaint w as dismissed without prejudice, Plaintiff may refile the same suit on the same claim. If Plaint iff chooses to refile, it must be under a new case number, which the Court would assign upon filing. A refiled action w ill als o be subject to a new filing fee, and it must be within the applicable limitations period. IT IS ORDERED that the Clerk of Court shall strike Plaint iff's Second Amended Complaint (Doc. #28). DATED this 12th day of February, 2007.

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