Salvador v. Hansberg

Filing 9

ORDER Granting Plaintiff's Motion For Extension Of Time To Amend (Re Doc. 8 ): Plaintiff's Amended Complaint must be received by the Court no later than 10/29/2012. If Plaintiff elects not to file an Amended Complaint by 10/29/2012, this c ase 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 William Q. Hayes on 9/5/2012. (All non-registered users served via U.S. Mail Service.) (mdc)

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By;

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DEPUY

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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.
Plaintiff,

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

vs.
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12cv1746 WQH (DHB)

Ms. HANSBERG,

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[ECF No.8]
Defendant.

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I.

PROCEDURAL HISTORY

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Amina Salvador ("Plaintiff') is currently detained at the San Diego Detention Center
("SDDC") in San Diego, California, as a result of ongoing immigration and deportation

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proceedings. Plaintiffis proceeding pro se in this civil rights action, which she initiated pursuant
to 42 U.S.C. § 1983. At the time she filed her Complaint, Plaintiff did not prepay the $350 filing
fee mandated by 28 U.S.C. § 1914(a); instead, she filed aMotion to Proceed In Forma Pauperis
("IFP") pursuant to 28 U.S.C. § 1915(a), as well as Motion to Appoint Counsel.
On August 7, 2012, the Court granted Plaintiff's IFP Motion, denied her Motion to
Appoint Counsel, and dismissed her Complaint as frivolous and for failing to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2). [ECF No.5]. To the extent her pleading suggested, and

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might be liberally construed as, an attempt to challenge the constitutional validity of the
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1 conditions of her confinement at the SDDC, Plaintiff was granted 45 days leave to amend. Id.
2 at 4-6; see also Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) ("[A] district
3 court should grant leave to amend even if no request to amend the pleading was made, unless
4 it determines that the pleading could not possibly be cured.") (citations omitted).
On August 30,2012, Plaintiff filed a Motion requesting an extension oftime in which to

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6 file her Amended Complaint. [ECF No.8]. Plaintiff claims she has limited access to the law
7 library but that she hopes to further research the cases cited as reasons for the Court's August
8 7, 2012 Order so that she may be able to cite an "arguable basis in law" and allege further facts
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in support of her claims. Id. at 1. Thus, Plaintiff asks for additional time days in which to "sit

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in with a lawyer who has agreed to give [her] some advice," access the library, and conduct the

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research necessary to amend her pleading. Id. at 1-2.

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STANDARDOFREVIEW

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

14 counsel. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696,699 (9th Cir. 1990) (court has
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a "duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their

16 claim due to ... technical procedural requirements."). Thus, the Court finds good cause to grant
17 Plaintiff s request. '" Strict time limits ... ought not to be insisted upon' where restraints resulting
18 from a pro se ... plaintiff's incarceration prevent timely compliance with court deadlines."
19 Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380 F.2d

20 465, 468 (9th Cir. 1967); see also Bennett v. King, 205 F.3d 1188, 1189 (9th Cir. 2000)
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(reversing the district court's dismissal of prisoner's amended pro se complaint as untimely

22 where a mere thirty day delay was the result of a prison-wide lockdown).
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III.

CONCLUSION AND ORDER

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Accordingly, IT IS ORDERED that:

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Plaintiffs Motion for an Extension of Time to Amend [ECF No.8] is GRANTED.

26 Plaintiffs Amended Complaint, should she elect to file one, must be received by the Court no
27 later than Monday, October 29, 2012. Plaintiffis cautioned that her Amended Complaint must
28 address all the deficiencies ofpleading previously identified in the Court's August 7,2012 Order
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1 [ECF No.5], and must be complete in itself without reference to her original Complaint. See
2 S.D. CAL. ClvLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,
3 1546 (9th Cir. 1989) ("[A]n amended pleading supersedes the original."); King v. Atiyeh, 814
4 F .2d 565, 567 (9th Cir. 1987) (citation omitted) ("All causes of action alleged in an original
5 complaint which are not alleged in an amended complaint are waived.").
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IfPlaintiff elects not to file an Amended Complaint by October 29, 2012, this case shall

7 remain dismissed as frivolous and/or for failure to state a claim pursuant to 28 U.S.C.
S § 1915(e)(2) without any further Order ofthe Court.

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