Wolinski v. Lewis et al

Filing 9

ORDER signed by Magistrate Judge Allison Claire on 07/28/17 ordering plaintiff will have a final opportunity to submit his motion. Within 30 days of this order's entry, plaintiff should either submit his motion to remand or explain why there is good cause for a further extension. Having already granted plaintiff a ninety-day extension, the court is disinclined to extend the deadline further absent a showing of extraordinary circumstances. (Plummer, M) Modified on 7/31/2017 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KRZYSZTOF F. WOLINSKI,

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No. 2:17-cv-00583 MCE AC P

Plaintiff,

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v.

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J. LEWIS, et al.,

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ORDER

Defendants.

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Defendants removed this action from the San Joaquin County Superior Court to this

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district on March 17, 2017. ECF No. 2. Plaintiff, who is a state prisoner, moved for an extension

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of time to file a motion to remand on May 15, 2017. ECF No. 7. He asked for an additional sixty

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days and stated that the basis for his motion would be that this case is barred by the Supreme

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Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994). ECF No. 7 at 2. Plaintiff claimed

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that an extension of time was necessary because he had been hospitalized in three separate

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facilities since March 4, 2017, and had not had access to either his legal materials or a law library.

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Id. at 1-2. The court granted plaintiff’s request for extension of time and his motion was due on

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July 17, 2017. ECF No. 8. To date, he has not filed his motion or sought additional time.

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A motion to remand based on any defect other than lack of subject matter jurisdiction

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must be made within thirty days of the filing of the notice of removal. See 28 U.S.C. § 1447(c).

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There is authority holding that the Heck bar is not jurisdictional. See, e.g., Okoro v. Bohman,
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164 F.3d 1059, 1061 (7th Cir. 1999); Jiron v. City of Lakewood, 392 F.3d 410, 413 n.1 (10th Cir.

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2004). Accordingly, to the extent plaintiff seeks to file a motion to remand based on the Heck

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bar, he must do so in a timely way. Plaintiff will have a final opportunity to submit his

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motion. Within thirty days of this order’s entry plaintiff should either submit his motion to

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remand or explain why there is good cause for a further extension of time. Having already

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granted plaintiff a ninety-day extension, the court is disinclined to extend the deadline further

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absent a showing of extraordinary circumstances. Failure to submit his motion within the

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deadline will almost certainly preclude him from raising a similar removal motion in the future,

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as it will be deemed untimely.

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SO ORDERED.

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DATED: July 28, 2017.

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