Elder-Evins v. Casey et al

Filing 188

ORDER by Judge ARMSTRONG granting 173 Motion for Extension of Time to Amend 1 Complaint,, (lrc, COURT STAFF) (Filed on 12/13/2011)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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7 ANNETTE SHARLENE ELDER-EVINS,

Case No: C 09-05775 SBA

TR.,
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Plaintiff,

ORDER

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vs.

Dkt. 173

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MICHAEL J. CASEY, et al.,
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Defendants.
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The parties are presently before the Court on pro se Plaintiff Annettee Sharlene

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Elder-Evins’ (“Plaintiff”) motion to enlarge time to file a second amended complaint

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(“SAC”). Dkt. 173. Defendant Daniel Shacklett and the Municipal Doe Defendants

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oppose the motion. Dkt. 179. Having read and considered the papers filed in connection

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with this matter and being fully informed, the Court hereby GRANTS the motion, for the

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reasons stated below.

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On January 31, 2011, this Court issued an Order dismissing portions of Plaintiff’s

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first amended complaint with prejudice, but permitted her to amend other portions by filing

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an amended pleading. Dkt. 106. The Court directed Plaintiff to file a SAC consistent with

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this Court’s Order within twenty-one (21) days of the date of that Order. Id. Plaintiff did

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not do so. Instead, Plaintiff filed a motion for extension of time to file a SAC on March 15,

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2011. Dkt. 114. On May 25, 2011, Plaintiff filed another motion for extension of time to

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file a SAC. Dkt. 133.

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On September 13, 2011, this Court issued an Order directing Plaintiff to file a SAC

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consistent with the Court’s January 31, 2011 Order within twenty (20) days of the date of

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that Order. Dkt. 167. Plaintiff, again, failed to do so. On October 6, 2011, Plaintiff filed

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another motion for extension to file a SAC. Dkt. 173.
Here, because it is not absolutely clear that Plaintiff cannot amend her pleading to

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state cognizable claims for relief, and because Plaintiff is a pro se litigant, the Court grants

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Plaintiff leave to file a SAC. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A

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pro se litigant must be given leave to amend his or her complaint, and some notice of its

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deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be

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cured by amendment.”). Accordingly,

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IT IS HEREBY ORDERED THAT:

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Plaintiff’s motion for enlargement of time to file a SAC is GRANTED.

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Plaintiff shall file a SAC consistent with this Court’s Order of January 31, 2011 within

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twenty-one (21) days of the date of this Order. Plaintiff is reminded to address the

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deficiencies of the first amended complaint as identified by this Court in its Order of

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January 31, 2011. Plaintiff is also reminded of her obligation to allege facts and claims

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only to the extent that she may do so in good faith. Fed. R. Civ. P. 11. If Plaintiff timely

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amends her pleading, Defendants shall respond consistent with the Federal Rules of Civil

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Procedure. The Court cautions Plaintiff that if she fails to timely amend her pleading, the

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Court will not grant another extension of time for Plaintiff to file a SAC. See Swanson v.

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U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996) (granting or denying leave to amend

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rests in the sound discretion of the trial court); Fidelity Financial Corp. v. Federal Home

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Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir. 1986) (a “court’s discretion to

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deny leave to amend is particularly broad where the court has already given the plaintiff an

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opportunity to amend his complaint”). The Court further cautions Plaintiff that if she fails

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to timely file a SAC, the Court will dismiss with prejudice those claims in which the Court

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dismissed with leave to amend in its Order of January 31, 2011.

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2.

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IT IS SO ORDERED.

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This Order terminates Docket No. 173.

Dated: December 12, 2011

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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ANNETTE SHARLENE ELDER-EVINS,
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Plaintiff,
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v.
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MICHAEL J. CASEY et al,
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Defendant.
/

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Case Number: CV09-05775 SBA
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CERTIFICATE OF SERVICE
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.

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That on December 13, 2011, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Annette Sharlene Elder-Evins
Guenocamata Sovereign Trust
Guenocamata Rancheria
948 Leddy Avenue
Santa Rosa, CA 95407-6601

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Dated: December 13, 2011
Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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