Jones et al v. Tulare County et al

Filing 114

ORDER DENYING plaintiff's motion for an extension of time to respond to the order to show cause, document 113 . Plaintiff must file a response to the order to show cause, document 110 , by no later than 11/1/2018 as previously ordered or face dismissal. Order signed by Magistrate Judge Erica P. Grosjean on 10/18/2018. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM FABRICIUS,

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Plaintiff,
v.

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TULARE COUNTY, et al.,

Case No. 1:15-cv-01779-LJO-EPG
ORDER DENYING MOTION FOR
EXTENSION OF TIME TO RESPOND TO
ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED AS
BARRED BY STATUTE OF
LIMITATIONS

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Defendants.

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(ECF No. 113)

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I.

BACKGROUND

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On November 24, 2015, William Fabricius (“Plaintiff”), proceeding pro se and in forma

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pauperis, commenced this action pursuant to 42 U.S.C. § 1983 against numerous defendants

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alleging constitutional violations in connection with the seizure of twenty-five dogs. (ECF No. 1.)

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On May 13, 2016, Plaintiff filed a First Amended Complaint. (ECF No. 17.) On July 5, 2016, the

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defendants filed a motion to dismiss. (ECF No. 34.) On December 7, 2016, the Court granted

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defendants’ motion to dismiss, but granted Plaintiff leave to amend his complaint within thirty

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days. (ECF No. 58.)

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On December 28, 2016, Plaintiff filed a motion for a 60-day extension of the time within

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which to file a second amended complaint, (ECF No. 62), which the Court granted, (ECF No. 53).

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On February 27, 2017, Plaintiff again requested a 60-day extension of time to file a second
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amended complaint. (ECF No. 64.) The Court again granted the motion, setting a final deadline to

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file a second amended complaint. (ECF No. 67.)

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On May 1, 2017, Plaintiff filed his Second Amend Complaint. (ECF No. 71.) On June 19,

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2017, pursuant to 28 U.S.C. § 1915, the Court screened and dismissed the Second Amended

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Complaint with leave to amend. (ECF No. 74.)

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On July 24, 2017, Plaintiff filed his Third Amended Complaint, the operative complaint,

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alleging thirteen enumerated claims against over thirty defendants. (ECF No. 75.) The operative

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complaint listed over eighteen new defendants. Id. On August 1, 2017, the Court directed Plaintiff

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to submit documents for service of the new defendants by the United States Marshals Service

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within thirty days. (ECF No 76.) Plaintiff failed to timely submit the documents.
On September 15, 2017, the Court issued an order to show cause, directing Plaintiff to

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show cause why his claims against the new defendants should not be dismissed for his failure to

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comply with the Court’s order. (ECF No. 81.) On September 18, 2017, Plaintiff filed a motion

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for a 30-day extension of time to comply with the Court’s service order, (ECF No. 82), which the

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Court granted. (ECF No. 83). Plaintiff submitted service documents for the new defendants on

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October 25, 2017. (ECF No. 91.)

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On September 1, 2017, and September 29, 2017, Defendants moved to dismiss the

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operative complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF

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Nos. 78, 88). On March 15, 2018, this Court issued findings and recommendations,

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recommending the dismissal of all claims and defendants, except Plaintiff’s claims for

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unreasonable force against Tulare County Sheriff Officers Bradley McLean and Lance Heiden

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(collectively, “Defendants”). (ECF No. 106.) On March 20, 2018, Defendants filed objections to

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the findings and recommendations. (ECF No. 107.) Defendants argued for the first time that

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Plaintiff’s claims for unreasonable force are barred by the applicable statute of limitations. Id. On

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May 10, 2018, the district judge assigned to this action declined to address the newly-raised

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defense and adopted the findings and recommendations. (ECF No. 109.) The district judge also

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referred the matter to this Court for further proceedings. Id.

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On June 29, 2018, this Court issued an order directing Plaintiff to show cause within 30
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days why this action should not be dismissed as barred by the applicable statute of limitations.

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(ECF No. 110.).

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On August 1, 2018, Plaintiff filed a request for an extension of the deadline to respond to

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the order to show cause. (ECF No. 111.) Plaintiff stated that he was injured in a house fire that

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destroyed his home and possessions, and requested a 90-day extension. On August 7, 2018,

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finding good cause, the Court granted the request for an extension, and direct Plaintiff to file a

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response to the order to show cause by November 1, 2018. (ECF No. 112.) The order also

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provided, “Failure to file a response in compliance with this order and the Order to Show Cause,

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(ECF No. 110), shall result in the dismissal of this case.”

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II.

RULING ON MOTION FOR EXTENSION

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Now before the Court is Plaintiff’s second request for an extension of time to respond to

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the order to show cause. (ECF No. 113). Plaintiff requests an extension of an additional 90 to 120

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days, and states, “I am still receiving medical treatment for my burns and other medical needs that

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also includes the American Disabilities Act protection. I am a veteran of war.” Id.

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The Court declines to grant Plaintiff a further extension of time. The Court has already

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granted a long extension of time for this same reason. Plaintiff does not indicate any information

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that is forthcoming that will address the statute of limitations issue. Plaintiff also does not

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provide any evidence that he is physically unable to prosecute this action at this time.

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This action has been pending for three years. During those three years, Plaintiff has filed

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four complaints, and has had ample opportunity to have his case heard. Defendants have raised

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what appears to be a valid defense and the Court has provided Plaintiff with an extensive

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opportunity to respond. Plaintiff cannot continue to delay resolution of this matter.

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Accordingly, the Court does not find good cause to extend the deadline to respond to the

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order to show cause. Plaintiff must file a response to the order to show cause, (ECF No. 110), by

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no later than November 1, 2018 as previously ordered.

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Failure to file a response to the order to show cause by November 1, 2018 shall result in
the dismissal of this action.

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IT IS SO ORDERED.
Dated:

October 18, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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