Gomez v. West et al

Filing 10

ORDER Vacating Order Dismissing Case and Judgment; ORDER for Clerk to Reopen Case; ORDER Granting 9 Motion for Extension of Time to File Amended Complaint signed by Magistrate Judge Gary S. Austin on 01/27/2015. Amended Complaint due by 3/2/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRED GOMEZ,

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Plaintiff,

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vs.
M. WEST, et al.,

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Defendants.

1:13-cv-01126-GSA-PC
ORDER VACATING ORDER
DISMISSING CASE AND JUDGMENT
(Docs. 7, 8.)
ORDER FOR CLERK TO REOPEN
CASE

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ORDER GRANTING MOTION FOR
EXTENSION OF TIME TO FILE
AMENDED COMPLAINT
(Doc. 9.)

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THIRTY DAY DEADLINE

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I.

BACKGROUND

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Fred Gomez (APlaintiff@) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on July 22,

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2013. (Doc. 1.) On August 22, 2013, Plaintiff consented to Magistrate Judge jurisdiction in

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this action under 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 5.)

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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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On December 11, 2014, the court screened the Complaint under 28 U.S.C. §1915A and

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entered an order dismissing the Complaint for failure to state a claim, with leave to amend

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within thirty days. (Doc. 6.) On January 20, 2015, the court dismissed this case and entered

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judgment, based on Plaintiff’s failure to comply with the thirty-day deadline in the court’s

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order. (Docs. 7, 8.)

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On January 23, 2015, Plaintiff filed a motion for extension of time to file an amended

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complaint. (Doc. 9.)

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II.

DISCUSSION

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Plaintiff shows good cause for the court to grant him an extension of time to file an

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amended complaint. Moreover, a review of the record shows that under the mailbox rule,

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Plaintiff’s motion for extension of time was timely filed, before the deadline to file the

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amended complaint had expired. Under the mailbox rule of Houston v. Lack, 487 U.S. 266,

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108 S.Ct. 2379 (1988), a pro se prisoner=s court filing is deemed filed at the time the prisoner

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delivers it to prison authorities for forwarding to the court clerk. Douglas v. Noelle, 567 F.3d

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1103, 1107 (9th Cir. 2009). While Plaintiff’s motion for extension of time was filed by the

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Clerk on January 23, 2015, eight days after the thirty-day deadline expired,1 Plaintiff’s proof of

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service shows that he mailed the motion to the court from Corcoran State Prison on January 13,

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2015, two days before the thirty-day deadline had expired. (Doc. 9 at 3.) Therefore, Plaintiff’s

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motion is deemed timely filed under the mailbox rule.

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Because Plaintiff’s motion was timely filed, and good cause appearing, the court shall

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reopen the case and grant Plaintiff an extension of time to file an amended complaint.

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Therefore, the court’s order dismissing this action, and the judgment, shall be vacated, and

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Plaintiff’s motion for extension of time shall be granted.

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In computing a time period specified in the Federal Rules of Civil Procedure, when the period is stated
in days and the last day of the period is a Saturday, Sunday, or legal holiday, the period continues to run until the
end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(c). In this instance, 30
days from December 11, 2014 was January 10, 2015, which was a Saturday. Therefore, the 30 day-deadline for
Plaintiff to file an amended complaint was extended until January 12, 2015. Furthermore, pursuant to Rule 6(d),
AWhen a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C),
(D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a).) Fed. R. Civ. P. 6(d).
Therefore, Plaintiff had until 3 days after January 12, 2015, or until January 15, 2015, to file the amended
complaint.

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III.

CONCLUSION

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In light of the foregoing, and good cause appearing, IT IS HEREBY ORDERED that:

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1.

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The court's order of January 20, 2015, which dismissed this action, is
VACATED;

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2.

The judgment entered on January 20, 2015, in this action is VACATED;

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3.

The Clerk is DIRECTED to reopen this case;

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4.

Plaintiff’s motion for extension of time, filed on January 23, 2015, is DEEMED

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timely filed;
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Plaintiff is GRANTED thirty days from the date of service of this order in which

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to file an amended complaint, pursuant to the court’s order of December 11,

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2014; and

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6.

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Plaintiff=s failure to comply with this order shall result in the dismissal of this
action for failure to obey a court order.

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IT IS SO ORDERED.
Dated:

January 27, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE