Haraszewski v. Brannan et al

Filing 10

ORDER granting plaintiff's 9 Second Motion to Extend Time to File an Amended Complaint; Plaintiffs Amended Complaint, should he elect to file one, must be received by the Court no later than Monday, August 9, 2010; if Plaintiff chooses not to file a Amended Complaint by August 9, 2010, this action shall remain dismissed for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and without further Order of the Court; Signed by Judge Larry Alan Burns on 6/25/10. (All non-registered users served via U.S. Mail Service)(kaj)

1 2 3 4 5 6 7 8 9 10 11 12 13 vs. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u b e rt Dymitr Haraszewski ("Plaintiff"), a state prisoner currently incarcerated at R icha rd J. Donovan Correctional Facility ("RJD") in San Diego, California, is proceeding pro s e and has initiated this civil action pursuant to 42 U.S.C. § 1983. I. P r o c e d u r a l Background At the time he filed his Complaint, Plaintiff did not prepay the $350 filing fee mandated b y 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") p u rsua n t to 28 U.S.C. § 1915(a) [Doc. No. 2]. O n April 20, 2010, the Court granted Plaintiff's IFP Motion, but dismissed his Complaint p u r s u a n t to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See April 20, 2010 Order [Doc. No. 4]. L IS A BRANNAN, Police Investigator; JO H N MORGANS, D.A. Investigator; H A N K TURNER, Police Sergeant; P A T R IC IA LAVARMICOCCA, Assistant D is tric t Attorney, Defendants. H U B E R T DYMITR HARASZEWSKI, C D C R #AC-2622, P la in tif f , C iv il No. 10-0546 LAB (PCL)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

O R D E R GRANTING PLAINTIFF'S S E C O N D MOTION FOR E X T E N S I O N OF TIME TO AMEND [D o c . No. 9]

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Plaintiff was granted 45 days leave, however, to amend his pleading. Id. at 6; see also Lopez v. S m ith , 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) ("[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the p le a d in g could not possibly be cured.") (citations omitted).) O n April 30, 2010, Plaintiff submitted a Motion requesting an extension of time in which to file his Amended Complaint, as well as copy of his original Complaint [Doc. No. 7]. Plaintiff c laim e d that because he is housed in the Administrative Segregation Unit, he had inadequate a c ce ss to the prison's law library. On May 6, 2010, the Court granted Plaintiff's Motion, giving h im until July 5, 2010 to submit his Amended Complaint, and further directed the Clerk to p ro v id e Plaintiff with as a copy of his original Complaint as well as a blank form Amended C o m p lain t for his reference and use [Doc. No. 8]. O n June 22, 2010, Plaintiff submitted a second Request for Extension of Time to Amend [ D o c . No. 9]. Plaintiff claims that despite the previous extension, he has "not been given law lib ra ry access even ONE time" in the last 50 days, even though the law library is "theoretically o p en to inmates" two days a week. Therefore, Plaintiff claims he is unable to meet the Court's J u ly 5, 2010 deadline. (See Pl.'s Mot. at 1-2.) II. S t a n d a r d of Review W h ile this is Plaintiff's second request for an extension of time, he is still proceeding w ith o u t counsel and his request is timely. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 6 9 9 (9th Cir. 1990) (court has a "duty to ensure that pro se litigants do not lose their right to a h e a rin g on the merits of their claim due to ... technical procedural requirements."). Thus, the C o u rt finds good cause to grant Plaintiff's request. "`Strict time limits ... ought not to be insisted u p o n ' where restraints resulting from a pro se ... plaintiff's incarceration prevent timely c o m p lia n c e with court deadlines." Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (c itin g Tarantino v. Eggers, 380 F.2d 465, 468 (9th Cir. 1967); see also Bennett v. King, 205 F .3 d 1188, 1189 (9th Cir. 2000) (reversing district court's dismissal of prisoner's amended pro s e complaint as untimely where mere 30-day delay was result of prison-wide lockdown). /// -2-

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Plaintiff is cautioned, however, that the Court is unlikely to grant any further extensions o f time absent a showing of extraordinary circumstances. III. C o n c lu s io n and Order A c c o rd in g ly, the Court hereby GRANTS Plaintiff's Second Motion to Extend Time to file an Amended Complaint [Doc. No. 9]. P lain tiff 's Amended Complaint, should he elect to file one, must be received by the Court n o later than Monday, August 9, 2010. Moreover, Plaintiff is cautioned that his Amended C o m p la in t must address the deficiencies of pleading previously identified in the Court's May 6 , 2010 Order [Doc. No. 4], and must be complete in itself without reference to his original c o m p la in t. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 8 9 6 F.2d 1542, 1546 (9th Cir. 1989). I f Plaintiff chooses not to file a Amended Complaint by August 9, 2010, this action shall re m a in dismissed for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) a n d without further Order of the Court. I T IS SO ORDERED. D A T E D : June 25, 2010

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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