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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN ROETTGEN, Case No.: 3:16-cv-01806-LAB-BGS Plaintiff, 12 13 14 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. 15 16 17 18 I. Procedural History 19 Plaintiff, an inmate currently incarcerated at the Richard J. Donovan Correctional 20 Facility, initially filed this action on July 11, 2016. (ECF No. 1.) On July 21, 2016, this 21 Court granted Plaintiff’s Motion to Proceed In Forma Pauperis (“IFP”) and dismissed his 22 Complaint (“FAC”) pursuant to 28 U.S.C. § 1915(e)(2). (ECF No. 3.) The Court found a 23 number of deficiencies in his pleading but nevertheless, Plaintiff was granted forty-five 24 (45) days leave to file an amended complaint. (Id. at 10-11.) 25 On February 13, 2017, nearly seven months after the Court dismissed this action, 26 Plaintiff has filed a “Motion for Copy of Court Order, Reinstate Case and for 45 days in 27 which to file First Amended Complaint.” (ECF No. 5.) 28 /// 1 3:16-cv-01806-LAB-BGS 1 Plaintiff claims that he never received the Court’s July 21, 2016 Order. (See Pl.’s 2 Mot. at 1-2.) Based on Plaintiff’s allegations, the Court finds good cause to grant 3 Plaintiff an extension of time in which to comply with its July 21, 2016 Order. “‘Strict 4 time limits ... ought not to be insisted upon’ where restraints resulting from a pro se ... 5 plaintiff’s incarceration prevent timely compliance with court deadlines.” Eldridge v. 6 Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380 F.2d 465, 7 468 (9th Cir. 1967); see also Bennett v. King, 205 F.3d 1188, 1189 (9th Cir. 2000). 8 9 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 10 Plaintiff fails to comply the Court’s Order within this timeframe, the Court will enter a 11 final order of dismissal. 12 Conclusion and Order 13 Accordingly, the Court hereby DENIES Plaintiff’s Motion to Reinstate this matter 14 but GRANTS Plaintiff an extension of time to file a First Amended Complaint. Plaintiff 15 is granted forty-five (45) days leave from the date this Order is “Filed” in which to file a 16 First Amended Complaint which cures all the deficiencies of pleading noted in the 17 Court’s July 21, 2016 Order. Plaintiff is once again cautioned that should he elect to 18 amend, his Amended Complaint must be complete in itself, that it will supersede his 19 original Complaint, and that any claim not re-alleged against any Defendant previously 20 named will be considered waived. See S.D. Cal. CivLR 15.1; King v. Atiyeh, 814 F.2d 21 565, 567 (9th Cir. 1987). 22 23 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. 24 25 26 27 Dated: April 5, 2017 Hon. Larry Alan Burns United States District Judge 28 2 3:16-cv-01806-LAB-BGS

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