Logan v. Horwitz, et al.

Filing 146

ORDER signed by Magistrate Judge Allison Claire on 2/20/2018 DENYING 145 Motion for Extension of Time and Request to Amend the Complaint. Plaintiff has 7 days from service of this order to respond to 135 Motion for Summary Judgment. (Fabillaran, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES DAVID LOGAN, II,

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No. 2:15-cv-0121 MCE AC P

Plaintiff,
v.

ORDER

EVALYN HORWITZ, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. On October 16, 2017, defendants filed a motion for summary judgment. ECF

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No. 135. On January 3, 2018, after plaintiff was granted an extension of time to file a response

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and failed to act within the time granted, he was ordered to file and serve an opposition or

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statement of non-opposition to the pending motion within twenty-one days. ECF No. 140. In the

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same order, plaintiff was informed that failure to file an opposition would result in a

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recommendation that this action be dismissed without prejudice for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b). Id. at 2. Approximately a week later, plaintiff filed a

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request for the status of his case (ECF No. 141) and the court advised him that he was required to

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respond to the motion for summary judgment or the undersigned would recommend dismissal of

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his case (ECF No. 142). His deadline was extended to thirty days from service of the order and

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he was also informed that any further motions for extensions of time would be denied unless he
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could show extraordinary circumstances. Id. at 2.

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Plaintiff has now requested another extension of time to respond to the motion for

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summary judgment on the ground that he was unable to access the law library in November and

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December 2017.1 ECF No. 145. This is not an extraordinary circumstance and plaintiff’s motion

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for extension of time will be denied.

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Plaintiff also sought to amend his complaint to include an allegation of property theft.

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ECF No. 145. Leave to amend is to be freely given “when justice so requires.” Fed. R. Civ. P.

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15(a)(2). However, plaintiff fails to attach the required copy of his proposed amended complaint

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that would allow the court to determine whether leave to amend would be appropriate. See Fed.

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R. Civ. P. 15; L.R. 137(c). Furthermore, the court has previously explained to plaintiff that he

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cannot amend the complaint by simply saying he wants to add claims or defendants. ECF Nos.

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50, 66. The court will continue to reject any requests by plaintiff to amend his complaint which

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do not comply with the Local Rules.

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Additionally, in this instance, even if plaintiff had properly filed his request for leave to

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amend his complaint, the request would be denied because the stolen property claim is unrelated

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to his medical claims. Joining more than one claim is only proper when it is against one

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defendant, and joining multiple defendants in one complaint is only proper when the claims

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against them are based on the same facts. Fed. R. Civ. P. 18(a), Fed. R. Civ. P. 20(a)(2). Because

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plaintiff indicates that he seeks to add new claims against new defendants based on an allegation

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of stolen property and there is nothing in his filing that indicates that the allegations of stolen

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property are related to his medical claims (ECF No. 145), amendment would not be proper.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for a thirty-day extension of time (ECF No. 145) is denied.

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2. Plaintiff has seven days from service of this order to respond to the motion for

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summary judgment. Failure to do so will result in a recommendation that this action be dismissed

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for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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Based on plaintiff’s most recent filing (ECF No. 145), the court will not consider his previous
filing (ECF No. 143) as an opposition to defendant’s motion for summary judgment.
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3. Plaintiff’s request to amend the complaint (ECF No. 145) is denied.

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IT IS SO ORDERED.

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DATED: February 20, 2018

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