Dustin v. Gipson et al

Filing 55

ORDER Discharging Order to Show Cause 53 , signed by Magistrate Judge Dennis L. Beck on 4/24/15. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DALE OWEN DUSTIN,

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Plaintiff,
v.
GIPSON, et al.,

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Case No. 1:14-cv-00757 AWI DLB PC
ORDER DISCHARGING ORDER
TO SHOW CAUSE
(Document 53)
THIRTY-DAY DEADLINE

Defendants.

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Plaintiff Dale Owens Dustin (“Plaintiff”) is a California state prisoner proceeding pro se and

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in forma pauperis in this action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on December

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16, 2013, and it was transferred to this Court on May 16, 2014.

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On June 9, 2014, the Court screened the complaint and dismissed it with leave to amend.

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Plaintiff was ordered to file an amended complaint within thirty (30) days of the date of service of

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the order.

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Since that time, Plaintiff has received numerous extensions of time. The Court granted

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Plaintiff’s last request on October 28, 2014, and instructed Plaintiff that the sixty-day extension

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would be his final extension.

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On December 31, 2014, Plaintiff filed a First Amended Complaint. However, the filing did

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not comply with the Court’s prior screening order because it was not legible, and the Court struck

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the filing on February 23, 2015. The Court explained that Plaintiff would be given a final
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opportunity to file a legible amended complaint in compliance with the Court’s June 9, 2014, order.

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Plaintiff was given thirty (30) days from the date of service of the order to do so.

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After thirty (30) days passed and Plaintiff had not complied with the order, the Court issued
an order to show cause on April 10, 2015.

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On April 22, 2015, the Court received a response from Plaintiff. Plaintiff indicates that he

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did not receive the order striking the First Amended Complaint. Giving Plaintiff the benefit of the

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doubt, the Court will DISCHARGE the order to show cause and give Plaintiff a final thirty (30)

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day extension within which to file a legible complaint.
Plaintiff also disagrees with the Court’s requirement that he submit a legible complaint, and

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questions the Court’s motivation. To be clear, the Court can read some of Plaintiff’s handwriting. It

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cannot, however, spend an inordinate amount of time deciphering Plaintiff’s writing when he writes

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very small and includes almost 100 single-spaced lines on a single page. This is especially true

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where Plaintiff has submitted over 150 pages of such writing.
The Court is cognizant of Plaintiff’s status as a pro se litigant, as well as his issues with

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handwriting, but it must hold Plaintiff to a certain standard of legible writing. Plaintiff likely has the

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ability to write with adequate spacing, but he continues to submit documents that fall far short of the

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legibility require of Local Rule 130(b).1

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Finally, to the extent that Plaintiff believes that counsel should be appointed so that the Court

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does not have to read his writing, the Court will not appoint counsel without a determination that

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Plaintiff is likely to succeed on the merits of his claims. At this point, the Court cannot make such a

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determination. Moreover, given some of Plaintiff’s statements and purported claims, the Court has

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concerns regarding Plaintiff’s ability to state a cognizable claim.2

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The Court notes that this is not the first action in which Plaintiff has been notified of the requirement that his writing be
legible.
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The Court also notes that Plaintiff may have three strikes within the meaning of 28 U.S.C. § 1915(g), and he therefore
may be prohibited from proceeding in forma pauperis absent an exception.

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Therefore, Plaintiff SHALL file an amended complaint within thirty (30) days of the date of

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service of this order. His complaint must be legible. It must contain adequate spacing between

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words and adequate spacing between lines. Plaintiff is also reminded that a complaint must contain

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“a short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R.

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Civ. P. 8(a)(2). If Plaintiff cannot comply with these basic requirements after repeated

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instructions and opportunities, this action will be dismissed.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

April 24, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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