Rivera v. Davey et al
Filing
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ORDER VACATING 19 Findings and Recommendations; ORDER GRANTING 20 Motion for Extension of Time to File Amended Complaint Within Thirty Days, signed by Magistrate Judge Barbara A. McAuliffe on 4/15/18. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RICKY RIVERA,
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Case No.: 1:16-cv-01817-AWI-BAM (PC)
Plaintiff,
v.
DAVE DAVEY, et al.,
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Defendants.
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ORDER VACATING FINDINGS AND
RECOMMENDATIONS
(ECF No. 19)
ORDER GRANTING MOTION FOR
EXTENSION OF TIME TO FILE AMENDED
COMPLAINT WITHIN THIRTY DAYS
(ECF No. 20)
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Plaintiff Ricky Rivera is a state prisoner proceeding pro se and in forma pauperis in this
civil action pursuant to 42 U.S.C. § 1983.
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I.
Background
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On November 22, 2017, the undersigned screened Plaintiff’s complaint, found that he had
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failed to state any cognizable claim, and granted him leave to amend within thirty (30) days.
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(ECF No. 14.) Plaintiff failed to amend, and on January 11, 2018, the Court issued findings and
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recommendations recommending dismissal of this action. (ECF No. 15.) Plaintiff filed a motion
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seeking an extension of time to amend his complaint, (ECF No. 16), and therefore on January 16,
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2018, the Court vacated the findings and recommendations and granted Plaintiff an additional
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thirty days to file an amended complaint, (ECF No. 16.)
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Rather than file an amended complaint, on February 9, 2018, Plaintiff filed objections
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arguing that he had sufficiently pleaded a cognizable claim in his original complaint. (ECF No.
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18.) On March 22, 2018, the Court issued findings and recommendations that it had considered
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Plaintiff’s objections, but nevertheless found that his complaint failed to state a cognizable claim
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for relief. (ECF No. 19.) Thus, the Court recommended dismissal of this action, and allowed
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fourteen (14) days for objections. (Id.)
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II.
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Currently before the Court is Plaintiff’s motion to extend the deadline for objections to the
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Request for Extension of Time
findings and recommendations, with a declaration in support, filed on April 9, 2018. (ECF No.
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20.) Plaintiff asserts in the motion that as a layman at the law with a limited education, he
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misunderstood the Court’s prior screening order and findings and recommendations. Plaintiff has
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since found a fellow inmate to assist him with his action, and now seeks leave to file a first
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amended complaint curing the deficiencies previously identified by the Court, as opposed to
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standing on his original complaint. Plaintiff asserts that he previously failed to amend based on
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his pro se status and misunderstanding, but is diligently working on amended allegations.
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Therefore, he seeks a thirty (30) day extension of time to now file an amended complaint in
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compliance with the Court’s November 22, 2017 screening order.
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The Court finds that the interests of justice are best served by allowing Plaintiff an
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opportunity to amend his complaint, and that he has shown diligence and good cause under the
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circumstances. Therefore, one final extension of time will be granted. Because Plaintiff has now
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been granted multiple extensions of time to file an amended complaint, no further extensions of
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time will be granted absent extraordinary cause.
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III.
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Accordingly, it is HEREBY ORDERED that:
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Conclusion
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The findings and recommendations issued on March 22, 2018 (ECF No. 15), are
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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
vacated;
amended complaint;
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No extension of time of the deadline set in this order shall be granted.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
April 15, 2018
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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