Salvador v. Perez

Filing 8

ORDER Granting Plaintiff's Motion For Extension Of Time To Amend Complaint (Re Doc. 7 ): Plaintiff's Amended Complaint, should she elect to file one, must be received by the Court no later than 11/5/2012. If Plaintiff elects not to file an Amended Complaint by 11/5/2012, this case shall remain dismissed as frivolous and/or for failure to state a claim pursuant to 28 U.S.C. Section 1915(e)(2) without any further Order of the Court. Signed by Judge Roger T. Benitez on 9/12/2012. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AMINA SALVADOR,

Detainee #A200948077,

Case No.

12cv1726 BEN (NLS)

Plaintiff,

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ORDER GRANTING PLAINTIFF'S
MOTION FOR EXTENSION
OF TIME TO AMEND COMPLAINT

1511 OFFICER PEREZ,

[ECF No.7]

vs.

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Defendant.

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18 II I.

PROCEDURAL HISTORY

19 II

Amina Salvador ("Plaintiff'), currently detained at the San Diego Detention Center

20 II ("SDDC") in San Diego, California, as a result of ongoing immigration and deportation
21 II proceedings, is proceeding pro se in this civil rights action, which she initiated pursuant to 42
22 II U.S.C. § 1983. At the time she filed her Complaint, Plaintiff did not prepay the $350 filing fee
23 II mandated by 28 U.S.C. § 1914(a); instead, she filed a Motion to Proceed In Forma Pauperis
2411 ("IFP") pursuant to 28 U.S.C. § 1915(a) [ECF No.2], as well as a Motion to Appoint Counsel
25 II [ECF No.3].
26 II

On August 6, 2012, the Court granted Plaintiff s IFP Motion, but denied her Motion to

27 II Appoint Counsel and dismissed her Complaint as frivolous and/or for failing to state a claim
28 II pursuant to 28 U.S.C. §§ 1915(e)(2). See Aug. 6, 2012 Order [ECF No.5]. To the extent her
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12cv1726 BEN (NLS)

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1 II pleading suggested, and might be liberally construed as, an attempt to challenge the

2 II constitutional validity of the conditions of her confinement at the SDDC, Plaintiffwas granted

3 1/ 45 days leave to amend. ld. at 4-6; see also Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
4 1/ 2000) (en banc ) ("[A] district court should grant leave to amend even ifno request to amend the
5 II pleading was made, unless it determines that the pleading could not possibly be cured." (citations
61/ omitted)).
7 II

On August 30,2012, Plaintiff filed aMotion requesting an extension oftime in which to

8 II file her Amended Complaint. See Pl.'s Mot. [ECF No.7]. Plaintiff claims she has limited
91/ access to the law library, but that she hopes to further research the cases cited in the Court's
10 II August 6, 2012 Order so that she may be able to cite an "arguable basis in law" and allege
11 II further facts in support of her claims. ld. at 1. Thus, Plaintiff asks for additional time in which
1211 to "sit in with a lawyer who has agreed to give [her] some advice," access the library, and

13 II conduct the research necessary to amend her pleading. ld. at 1-2.
1411 II.

STANDARD OF REVIEW

15 II

This is Plaintiff's first request for an extension oftime, and she is still proceeding without

16 II counsel. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696,699 (9th Cir. 1990) (court has
17 II a "duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their
18 II claim due to ... technical procedural requirements"). Thus, the Court finds good cause to grant
19 II Plaintiff s request. '" Strict time limits . . . ought not to be insisted upon' where restraints
20 II resulting from a pro se . . . plaintiff s incarceration prevent timely compliance with court
21 II deadlines." Eldridge v. Block, 832 F .2d 1132, 1136 (9th Cir. 1987)(citing Tarantino v. Eggers,
2211 380 F.2d 465, 468 (9th Cir. 1967)); see also Bennett v. King, 205 F.3d 1188, 1189 (9th Cir.

23 II 2000) (reversing district court's dismissal of prisoner's amended pro se complaint as untimely
24 II where mere 30-day delay was result of prison-wide lockdown).
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II III.

CONCLUSION AND ORDER

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Accordingly, IT IS ORDERED that:

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1)

Plaintiffs Motion for an Extension of Time to Amend [ECF No.7] is GRANTED.

28 II Plaintiffs Amended Complaint, should she elect to file one, must be received by the Court no
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12cvl726 BEN (NLS)

1 II later than Monday, November 5, 2012. Plaintiff is cautioned, however, that her Amended
2 II Complaint must address all the deficiencies of pleading previously identified in the Court's
3 II August 6, 2012 Order [ECF No.5], and must be complete in itself without reference to her

4 II original Complaint. See S.D. CAL. CIV. L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner &
511 Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) ("[A]n amended pleading supersedes the

611 original."); Kingv. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted) ("All causes of
7 II action alleged in an original complaint which are not alleged in an amended complaint are
8 /I waived. ").

2)

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If Plaintiff elects not to file an Amended Complaint by November 5, 2012, this

10 II case shall remain dismissed as frivolous and/or for failure to state a claim pursuant to 28 U.S.C.
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§ 1915(e)(2) without any further Order of the Court.

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14 DATED:
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ON. ROGER T. BENITEZ
United States District Judge

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