Roettgen v. Paramo et al

Filing 6

ORDER denying 5 Motion to Reinstate Case and granting 5 Motion for Extension of Time to File First Amended Complaint. Plaintiff is granted forty-five days leave from the date this Order is "Filed" in which to file a First Amended Complaint. Signed by Judge Larry Alan Burns on 4/5/17. (All non-registered users served via U.S. Mail Service)(copy of docket and 7/21/16 Order also mailed to plaintiff)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN ROETTGEN,

Case No.: 3:16-cv-01806-LAB-BGS
Plaintiff,

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ORDER: (1) DENYING MOTION
TO REINSTATE CASE; AND (2)
GRANTING MOTION FOR
EXTENSION OF TIME TO FILE
FIRST AMENDED COMPLAINT

v.
D. PARAMO, ET AL.,
Defendant.

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I.

Procedural History

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Plaintiff, an inmate currently incarcerated at the Richard J. Donovan Correctional

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Facility, initially filed this action on July 11, 2016. (ECF No. 1.) On July 21, 2016, this

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Court granted Plaintiff’s Motion to Proceed In Forma Pauperis (“IFP”) and dismissed his

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Complaint (“FAC”) pursuant to 28 U.S.C. § 1915(e)(2). (ECF No. 3.) The Court found a

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number of deficiencies in his pleading but nevertheless, Plaintiff was granted forty-five

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(45) days leave to file an amended complaint. (Id. at 10-11.)

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On February 13, 2017, nearly seven months after the Court dismissed this action,

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Plaintiff has filed a “Motion for Copy of Court Order, Reinstate Case and for 45 days in

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which to file First Amended Complaint.” (ECF No. 5.)

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3:16-cv-01806-LAB-BGS

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Plaintiff claims that he never received the Court’s July 21, 2016 Order. (See Pl.’s

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Mot. at 1-2.) Based on Plaintiff’s allegations, the Court finds good cause to grant

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Plaintiff an extension of time in which to comply with its July 21, 2016 Order. “‘Strict

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time limits ... ought not to be insisted upon’ where restraints resulting from a pro se ...

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plaintiff’s incarceration prevent timely compliance with court deadlines.” Eldridge v.

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Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380 F.2d 465,

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468 (9th Cir. 1967); see also Bennett v. King, 205 F.3d 1188, 1189 (9th Cir. 2000).

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However, the Court will not “reinstate” this case at this time. If Plaintiff files an
amended pleading within forty-five (45) days, the Court will reopen the matter. If

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Plaintiff fails to comply the Court’s Order within this timeframe, the Court will enter a

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final order of dismissal.

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Conclusion and Order

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Accordingly, the Court hereby DENIES Plaintiff’s Motion to Reinstate this matter

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but GRANTS Plaintiff an extension of time to file a First Amended Complaint. Plaintiff

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is granted forty-five (45) days leave from the date this Order is “Filed” in which to file a

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First Amended Complaint which cures all the deficiencies of pleading noted in the

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Court’s July 21, 2016 Order. Plaintiff is once again cautioned that should he elect to

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amend, his Amended Complaint must be complete in itself, that it will supersede his

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original Complaint, and that any claim not re-alleged against any Defendant previously

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named will be considered waived. See S.D. Cal. CivLR 15.1; King v. Atiyeh, 814 F.2d

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565, 567 (9th Cir. 1987).

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The Clerk of Court is directed to mail Plaintiff a copy of the Court’s docket along
with a copy of the July 21, 2016 Order.

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Dated: April 5, 2017
Hon. Larry Alan Burns
United States District Judge

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3:16-cv-01806-LAB-BGS