Sermeno v. Irmer, et al.

Filing 14

ORDER signed by Magistrate Judge Kendall J. Newman on 7/13/17 denying 13 Motion to Stay, or in the alternative, to voluntarily dismiss this action. Within 30 days of the date of this order, plaintiff shall file an amended complaint. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY A. SERMENO, 12 No. 2: 17-cv-0745 GEB KJN P Plaintiff, 13 v. 14 M. IRMER, et al., 15 ORDER Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On April 12, 2017, the undersigned dismissed plaintiff’s complaint with 19 leave to amend. (ECF No. 6.) On June 22, 2017, the undersigned granted plaintiff a thirty days 20 extension of time to file his amended complaint. (ECF No. 12.) 21 On June 29, 2017, plaintiff filed a request to stay this action. (ECF No. 13). In the 22 alternative, plaintiff requests that this action be dismissed without prejudice to his filing a motion 23 to reopen this action pursuant to Federal Rule of Civil Procedure 60(b). (Id.) Plaintiff alleges 24 that due to his prison work schedule, he is unable to prosecute this action at this time. (Id.) 25 Plaintiff is informed that this action cannot be indefinitely stayed based on plaintiff’s work 26 schedule. Plaintiff is also informed that were this action dismissed without prejudice, it is very 27 unlikely that a motion pursuant to Rule 60(b) to reopen this action based on plaintiff’s more 28 lenient work schedule would be granted. 1 1 For the reasons discussed above, plaintiff’s motion to stay this action or for a voluntary 2 dismissal is denied. Plaintiff is granted thirty days to file an amended complaint. Plaintiff may, 3 in the alternative, file a request to voluntarily dismiss this action without prejudice, without 4 conditions for reopening this case. If this request is granted, plaintiff will most likely have to file 5 a new civil rights action when he is ready to proceed with the claims raised in the instant action. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s motion to stay this action or, in the alternative, to voluntarily dismiss this 8 action (ECF No. 13) is denied; 9 2. Within thirty days of the date of this order, plaintiff shall file an amended complaint; 10 failure to file an amended complaint will result in a recommendation of dismissal of this action 11 without prejudice. 12 Dated: July 13, 2017 13 14 15 Ser745.ord 16 kc 17 18 19 20 21 22 23 24 25 26 27 28 2

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