Saunders v. Cate et al

Filing 75

ORDER signed by District Judge Anthony W. Ishii on 6/23/2015 declining to adopt 71 FINDINGS and RECOMMENDATIONS and directing Plaintiff to inform the Court if he wishes to proceed on the claims found cognizable in the Third Amended Complaint. (Filing Deadline: 7/6/2015). (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JASON SAUNDERS,

12

Plaintiff,

13
14
15

vs.

1:06-cv-01567-AWI-GSA-PC
ORDER DECLINING TO ADOPT
FINDINGS AND RECOMMENDATIONS
(Doc. 71.)

MATTHEW L. CATE, et al.,
Defendants.

16
17
18

Jason Saunders (“Plaintiff”) is a former state prisoner proceeding pro se with this civil

19

rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States

20

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

21

On October 8, 2013, the Magistrate Judge screened Plaintiff’s Third Amended

22

Complaint (“TAC”). The Magistrate Judge found that excessive force claims against several

23

defendants were cognizable, but that other claims were not. See Doc. No. 56. The Magistrate

24

Judge ordered Plaintiff to either file a Fourth Amended Complaint or inform the Court of his

25

willingness to proceed on those claims that were found to be cognizable within 30 days. See

26

id. Any amended complaint was to be limited to no more than 25 pages. See id.

27
28

Plaintiff has indicated that he wishes to file a Fourth Amended Complaint, and he has
been granted numerous extensions of time to file a Fourth Amended Complaint. On December
1

1

3, 2013, Plaintiff was granted a 45 day extension due lack of sufficient law library access and a

2

need to obtain administrative records. See Doc. Nos. 57, 58. On February 6, 2014, Plaintiff

3

was granted a 60 day extension due complications from the affliction of valley fever and lack

4

of adequate treatment, as well as limited law library access. See Doc. Nos. 59, 60. On April

5

24, 2014, the Plaintiff was granted a 45 day extension due to continued complications from

6

valley fever and lack of access to legal materials. See Doc. Nos. 61, 62. On August 8, 2014,

7

and following objections from Plaintiff, the Magistrate Judge vacated a findings and

8

recommendation that had recommended dismissing the case due to the failure to obey a court

9

order. See Doc. Nos. 63, 66. The Magistrate Judge also granted Plaintiff an additional 30 days

10

in which to comply with the October 8 screening order. See Doc. No. 66. On September 18,

11

2014, the Magistrate Judge granted Plaintiff an additional 30 days in which to file an amended

12

complaint. See Doc. No. 68. Plaintiff had requested additional time because he had been

13

released from prison and his medical and psychiatric problems had not stabilized until recently

14

because he was able to secure medications, and he needed time to obtain the order and

15

complaint so that he could amend (a process which he represented had begun). See Doc. No.

16

67. Plaintiff stated that this would be his final extension. See id. On October 30, 2014, the

17

Magistrate Judge granted Plaintiff an additional 30 days in which to file an amended complaint.

18

See Doc. No. 68. Plaintiff had sought a 45 day extension for the same reasons as he had

19

articulated in his previous request for additional time. See Doc. Nos. 67, 69. Like his previous

20

motion for an extension, he assured the Court that this would be the last request for an

21

extension. See id. In fact, Plaintiff’s October 24, 2014 motion for an extension of time is

22

identical to his September 10, 2014 motion, except that he asked for 45 days instead of 30 days

23

in the last paragraph of the October motion. Cf. Doc. No. 67 with Doc. No. 69. The Magistrate

24

Judge granted Plaintiff an additional 30 days in which to file an amended complaint. See Doc.

25

No. 70. Plaintiff did not file a Fourth Amended Complaint in the time allotted.

26

On December 12, 2014, a Findings and Recommendations (“F&R”) was entered,

27

recommending that this action be dismissed for Plaintiff’s failure to comply with a court order.

28

(Doc. 71.)
2

1

On December 15, 2014, Plaintiff requested yet another extension of time. See Doc. No.

2

72. That request is very short, and merely asks for an extension based on the same

3

circumstances that he had previously described in his October 2014 motion. See id.

4

On December 19, 2014, the Magistrate Judge denied Plaintiff’s motion for an extension

5

of time as unsupported and contrary to his prior representations that no further extensions of

6

time would be requested. See Doc. No. 73.

7

On January 5, 2015, Plaintiff filed objections to the F&R. See Doc. No. 74.

8

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this

9

court has conducted a de novo review of this case.

10

To the extent that Plaintiff complains about the failure to grant another extension of

11

time, the Court agrees with the Magistrate Judge’s determination that insufficient cause has

12

been demonstrated. Plaintiff has had more than a year to respond to the Magistrate Judge’s

13

analysis of the TAC, and has yet to do so. That is an extraordinary amount of time. Plaintiff

14

did not indicate that he has prepared a Fourth Amended Complaint, but instead requests an

15

additional 45 days in which to file a Fourth Amended Complaint because of psychiatric issues

16

and having developed valley fever. The valley fever issues are not new. Plaintiff has informed

17

the Court of these issues on several occasions, and on the last two occasions the Court was

18

assured by Plaintiff that no further requests for time would be made. Despite the various

19

obstacles encountered by Plaintiff, including valley fever complications, relocating out of

20

prison, and limited access to a prison law library, Plaintiff has been able to submit four

21

complaints (an initial complaint and three amended complaints), make numerous requests for

22

extensions of time, and make objections to findings and recommendations. Moreover, Plaintiff

23

has had well over a year to file a Fourth Amended Complaint, which is an extraordinary

24

amount of time. Plaintiff’s objections and most recent request for an extension of time are

25

unsworn and provide little detail. Reliance on an unsworn and vague allegation of a severe

26

medical issue is insufficient given the history of this case and the significant time that has

27

elapsed. The Court will not grant further time to file a Fourth Amended Complaint.

28
3

1

However, while the Court will not grant additional time to file a Fourth Amended

2

Complaint, the Court respectfully declines to dismiss the case at this time. The TAC was found

3

to state cognizable claims against certain defendants for excessive force. Because Plaintiff has

4

alleged cognizable claims in the TAC, the Court will require Plaintiff to state his willingness to

5

proceed on those claims. If Plaintiff wishes to proceed, then the case will proceed on the

6

cognizable excessive force claims only. If Plaintiff does not wish to proceed, then the TAC

7

will be dismissed and this case will close. If Plaintiff does not timely state whether he wishes

8

to proceed with the cognizable excessive force claims in the TAC, the Court will close this case

9

for failure to prosecute (as recommended by the F&R) without further notice.

10
11

Accordingly, THE COURT HEREBY ORDERS that:

12

1.

13

The Court respectfully DECLINES to adopt the F&R issued on December 12,
2014 (Doc. No. 71);

14

2.

Plaintiff shall inform the Court whether he wishes to proceed on the claims
found cognizable in the Third Amended Complaint on or by July 6, 2015;1 and

15
16

3.

17

The failure of Plaintiff to timely respond to this order will result in the dismissal
of this case without further notice for failure to obey a court order.

18
19
20

IT IS SO ORDERED.
Dated: June 23, 2015
SENIOR DISTRICT JUDGE

21
22
23
24
25
26
27
28

1

Because Plaintiff is no longer a prisoner, he does not have the benefit of the “mail box rule.” A notice from
Plaintiff that is post-marked on or before July 6, 2015 will not be sufficient. Plaintiff’s notice must be in the
physical possession of the Clerk’s office on or by July 6, 2015.
4