Thomas v. Roberts et al

Filing 27

ORDER signed by Magistrate Judge Carolyn K. Delaney on 06/09/17 ordering that, to the extent plaintiff requests that judgment be vacated in this manner by virtue of the courts receipt of plaintiffs amended complaint, plaintiffs request is denied. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSH THOMAS,

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Plaintiff,

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No. 2:16-cv-0724 CKD P

v.

ORDER

BRIAN ROBERTS, et al.,

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Defendants.

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On October 21, 2016, plaintiff’s complaint was dismissed with leave to amend. The

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deadline for filing an amended complaint was May 17, 2017. On June 1, 2017, the court

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dismissed this action for plaintiff’s failure to file an amended complaint.1 A review of the court’s

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docket reveals that the court received plaintiff’s amended complaint on May 30, 2017, but the

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complaint was not docketed until after the court issued its dismissal order.

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In the amended complaint, plaintiff asserts he placed it in the legal mail collection system

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at the California Medical Facility on May 20, 2017. Court documents submitted by prisoners are

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generally deemed filed for the purposes of federal court deadlines on the day the document is

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given to a prison official for mailing. See Houston v. Lack, 487 U.S. 266, 270-71 (1988). So,

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Plaintiff has consented to have all matters in this action before a United States Magistrate
Judge. See 28 U.S.C. § 636(c).

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while plaintiff’s amended complaint was actually filed before this action was dismissed, it was

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not timely-filed.

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Pursuant to Federal Rule of Civil Procedure 6(b) the court can only extend a court

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deadline after it has expired based upon a showing of excusable neglect. Plaintiff does not

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explain why he filed his amended complaint three days late, nor does he seek an extension of

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time.

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In any case, granting plaintiff an extension of time to file an amended complaint would be

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futile because plaintiff’s amended complaint fails to state a claim upon which relief can be

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granted. As plaintiff was informed in the court’s October 21, 2016 order, the court is required to

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screen complaints brought by prisoners seeking relief against a governmental entity or officer or

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employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint

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or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that

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fail to state a claim upon which relief may be granted, or that seek monetary relief from a

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defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
Plaintiff’s original complaint was dismissed for failure to state a claim under federal law.

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In the dismissal order, plaintiff was informed of the deficiencies in his claims and given an

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opportunity to correct them in an amended complaint. The court has reviewed plaintiff’s

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amended complaint and finds that it is not different in any material respect from his original

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complaint and still does not state a claim upon which plaintiff could proceed in this court.2 At

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this point, granting leave to amend a second time would be futile.

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It appears that in his amended complaint, plaintiff asserts for the first time, that he was
subjected to ineffective assistance of counsel at parole proceedings. This does not implicate a
federal right as the Sixth Amendment only guarantees assistance of counsel “[i]n . . . criminal
prosecutions.”
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For all the foregoing reasons, IT IS HEREBY ORDERED that, to the extent plaintiff

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requests that judgment be vacated in this manner by virtue of the court’s receipt of plaintiff’s

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amended complaint, plaintiff’s request is denied.

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Dated: June 9, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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thom0724.ac

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