(PC) Fierro v. Ruiz et al

Filing 15

ORDER DISCHARGING 13 Showing of Cause and DENYING 14 Plaintiff's Request for a Stay of These Proceedings; SECOND ORDER DIRECTING Plaintiff to File First Amended Complaint; Plaintiff's First Amended Complaint Due in Thirty Days, signed by Magistrate Judge Gary S. Austin on 3/9/2025. (Attachments: # 1 Amended Complaint Form) (Deputy Clerk OFR)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOE FIERRO,

12

Plaintiff,

13

v.

14

J. RUIZ, et al.,

15

No. 1:24-cv-01413 KES GSA (PC)
ORDER DISCHARGING SHOWING OF
CAUSE AND DENYING PLAINTIFF’S
REQUEST FOR A STAY OF THESE
PROCEEDINGS
(See ECF No. 14)
Defendants.
SECOND ORDER DIRECTING PLAINTIFF
TO FILE FIRST AMENDED COMPLAINT

16

PLAINTIFF’S FIRST AMENDED
COMPLAINT DUE IN THIRTY DAYS

17
18
19

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil
20
rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States
21
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
22
23
24

Before this Court is Plaintiff’s response to the Court’s recently issued order to show cause.
ECF Nos. 13, 14 (order to show cause; Plaintiff’s response to same). For the reasons stated
below, the order to show cause will be discharged and Plaintiff’s request for a stay of these

25
proceedings will be denied. In addition, Plaintiff will be ordered to file a first amended
26
complaint. He will be given thirty days to do so.
27
28
1

1

I.

A. Plaintiff’s Complaint

2
3

RELEVANT BACKGROUND

On November 19, 2024, Plaintiff’s complaint along with his application to proceed in

4

forma pauperis were docketed. ECF Nos. 1, 2. The complaint loosely alleged violations of right

5

stemming from Defendants’ write up of an alleged false rules violation report on Plaintiff in

6

retaliation for having filed grievances against Defendants, and Defendants’ denial of an

7

investigative employee at the rules violation report hearing. See ECF No. 1 at 3-5. Shortly

8

thereafter, upon receipt of Plaintiff’s prison trust fund account statement (see ECF No. 6),

9

Plaintiff’s in forma pauperis application was granted (ECF No 7).

10
11

B. Grant of Leave to Amend
On December 12, 2024, a request from Plaintiff asking whether he could attach a single

12

page to his original complaint was docketed. ECF No. 10. Days later, Plaintiff also filed a

13

motion for leave to file an amended complaint, and within the motion itself included a “proposed

14

Amended Complaint”, but importantly did not separately lodge an amended complaint. See ECF

15

No. 11. On December 23, 2024, the motion to attach an additional page was denied, but

16

Plaintiff’s request for leave to amend was granted. See ECF No. at 12 at 2-3. Plaintiff was then

17

given thirty days to file an amended complaint. Id. at 3.

18

C. Failure to Amend

19

More than thirty days has now passed, and Plaintiff has not filed an amended complaint,

20

nor did Plaintiff request an extension of time to do so. As a result, on February 7, 2025, Plaintiff

21

was ordered to show cause why the matter should not be dismissed. ECF No. 13. As an

22

alternative to filing the showing of cause, Plaintiff was also told that he could file the amended

23

complaint. Id. at 2-3. Plaintiff was given yet another thirty days to take either course of action.
PLAINTIFF’S SHOWING OF CAUSE

24

II.

25

Plaintiff opted to file the showing of cause. See ECF No. 14. In it, ultimately, he states

26

that he was unable to timely file his amended complaint because he was “separated” from the

27

person in the prison who provided him with legal assistance. ECF No. 14 at 1-2. However, in the

28

showing, Plaintiff also references “act[ing] in the local court on Writ of Habeas Corpus. Id. at 12

1

2 (brackets added). In addition, he asks in part that the Court stay these proceedings so that the

2

lower court that is reviewing his writ of habeas corpus can rule on it. Id. at 2.

3

III.

DISCUSSION

4

Plaintiff’s statement to the Court that he no longer has access to the person who was

5

assisting him is an adequate reason why Plaintiff did not file his amended complaint in a timely

6

manner. As a result, the order to show cause will be discharged, and Plaintiff will be given yet

7

another opportunity to file an amended complaint. However, Plaintiff’s request to stay this matter

8

will be denied and he will be ordered to file an amended complaint and to do so within thirty

9

days.

10

Accordingly, IT IS HEREBY ORDERED that:

11

1. The Clerk of Court shall send Plaintiff a copy of the Court’s Civil Rights Complaint

12
13
14

by a Prisoner form;
2. The Court’s order to show cause issued February 7, 2025 (ECF No. 13) is
DISCHARGED;

15

3. Plaintiff’s request to stay this matter (see ECF No. 14 at 2) is DENIED, and

16

4. Within thirty days from the date of this order, Plaintiff shall file a first amended

17
18
19

complaint.
Plaintiff is cautioned that failure to comply with this order within the time allotted
may result in a recommendation that this matter be dismissed.

20
21
22
23

IT IS SO ORDERED.
Dated:

March 9, 2025

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28
3