Johnson v. Paramo

Filing 10

ORDER Granting 9 Plaintiff's Motion for Extension of Time to Amend. Plaintiff's Amended Complaint, should he elect to file one, must be received by the Court no later than Monday, January 25, 2016. The Clerk of Court is directed to p rovide Plaintiff with another blankcopy of the Court's form "Complaint under the Civil Rights Act, 42 U.S.C. § 1983." If Plaintiff does not to file an Amended Complaint by January 25, 2016, thiscivil action shall remain dismissed. Signed by Judge Gonzalo P. Curiel on 12/15/15. (All non-registered users served via U.S. Mail Service) Amended Complaint form mailed(dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JOHN A. JOHNSON, CDCR #E-11379, Plaintiff, 13 14 15 Case No. vs. DANIEL PARAMO, 18 I. 19 ORDER GRANTING PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO AMEND (ECF Doc. No. 9) 16 17 15-cv-1531 GPC (JMA) Defendant. PROCEDURAL HISTORY John A. Johnson (“Plaintiff”), currently incarcerated at the California Health Care 20 Facility in Stockton, California, is proceeding pro se in this civil rights action, which he 21 filed pursuant to 42 U.S.C. § 1983 on July 9, 2015. See Compl., ECF Doc. No. 1. 22 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when 23 he filed his Complaint; instead, he submitted a certified copy of his prison trust account 24 statement (ECF Doc. No. 2), which the Court has construed as a Motion to Proceed In 25 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). In addition, Plaintiff submitted 26 two identical letters requesting permission to amend his original demand for punitive 27 damages, which the Court has construed as a Motion for Leave to Amend (ECF Doc. 28 Nos. 4, 6). See Bernhardt v. Los Angeles Police Dept., 339 F.3d 920, 925 (9th Cir. 2003) -1- 15-cv-1531 GPC (JMA) 1 (“Courts have a duty to construe pro se pleadings liberally, including pro se motions as 2 well as complaints.”). 3 On November 5, 2015, the Court granted Plaintiff leave to proceed IFP, but 4 dismissed his Complaint failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and 5 § 1915A(b) See ECF Doc. No. 7 at 10-11. The Court further granted Plaintiff 45 days 6 in which to file an Amended Complaint that addressed the deficiencies of pleading 7 identified by the Court. Id.; see also Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 8 2000) (en banc) (“[A] district court should grant leave to amend even if no request to 9 amend the pleading was made, unless it determines that the pleading could not possibly 10 be cured.”) (citations omitted). 11 II. PLAINTIFF’S MOTION 12 On December 8, 2015, Plaintiff submitted a letter in which he claims to suffer 13 from hallucinations due to his psychiatric condition and the effect of various 14 medications. See Pl.’s Mot. (ECF Doc. No. 9) at 1. Plaintiff claims he is “not very well,” 15 has difficulty “put[ting] down a paragraph on paper,” and “in [his] hurry to amend, not 16 thinking right, messed up [the form] complaint” that the Clerk of Court sent to him 17 pursuant to the Court’s November 5, 2015 Order. Id. at 2. Plaintiff asks that another form 18 Complaint be mailed to him, and for additional time in which to submit it, because he 19 was confused as to whether the 45 days previously granted included calendar or 20 “business” days. Id. 21 Plaintiff’s request for an extension of time is timely, he remains incarcerated, and 22 is still proceeding without counsel. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 23 699 (9th Cir. 1990) (court has a “duty to ensure that pro se litigants do not lose their right 24 to a hearing on the merits of their claim due to . . . technical procedural requirements.”). 25 Thus, the Court finds good cause exists to support Plaintiff’s request. “‘Strict time limits 26 . . . ought not to be insisted upon’ where restraints resulting from a pro se . . . plaintiff’s 27 incarceration prevent timely compliance with court deadlines.” Eldridge v. Block, 832 28 F.2d 1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380 F.2d 465, 468 (9th Cir. -2- 15-cv-1531 GPC (JMA) 1 1967); see also Bennett v. King, 205 F.3d 1188, 1189 (9th Cir. 2000) (reversing district 2 court’s dismissal of prisoner’s amended pro se complaint as untimely where mere 30-day 3 delay was result of prison-wide lockdown). 4 III. CONCLUSION AND ORDER 5 Accordingly, IT IS ORDERED that: 6 1. Plaintiff’s Motion for an Extension of Time to Amend (ECF Doc. No. 9) is 7 GRANTED. Plaintiff’s Amended Complaint, should he elect to file one, must be 8 received by the Court no later than Monday, January 25, 2016. Plaintiff is again 9 cautioned, however, that his Amended Complaint must be complete in itself without 10 reference to his original Complaint. Defendants not named and any claims not re-alleged 11 in the Amended Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal 12 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 13 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 14 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 15 re-alleged in an amended pleading may be “considered waived if not repled.”). 16 2. The Clerk of Court is DIRECTED to provide Plaintiff with another blank 17 copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. § 1983,” for 18 Plaintiff’s use in amending. If Plaintiff chooses to amend, he must caption his pleading 19 as his Amended Complaint, and include Civil Case No. 15cv1531 GPC (JMA) on its title 20 page. 21 3. If Plaintiff does not to file an Amended Complaint by January 25, 2016, this 22 civil action shall remain dismissed for failure to state a claim pursuant to 28 U.S.C. 23 § 1915(e)(2) and § 1915A(b) for all the reasons set forth in the Court’s November 5, 24 2015 Order, and without any further Order by the Court. 25 DATED: December 15, 2015 26 27 HON. GONZALO P. CURIEL United States District Judge 28 -3- 15-cv-1531 GPC (JMA)

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