Fernandez v. MCC

Filing 7

ORDER Granting 6 Letter/Motion Requesting Extension of Time to File Second Amended Complaint. Signed by Judge Gonzalo P. Curiel on 11/17/20.(All non-registered users served via U.S. Mail Service)(dlg)

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Case 3:20-cv-01265-GPC-AHG Document 7 Filed 11/17/20 PageID.36 Page 1 of 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 MARCELO LARIOS FERNANDEZ, BOP #87515-298, 15 ORDER GRANTING LETTER / MOTION REQUESTING EXTENSION OF TIME TO FILE SECOND AMENDED COMPLAINT Plaintiff, 13 14 Case No.: 3:20-cv-01265-GPC-AHG vs. METROPOLITAN CORRECTIONAL CENTER, 16 Defendant. [ECF No. 6] 17 18 19 Plaintiff Marcelo Larios Fernandez (“Plaintiff”), currently detained, awaiting trial at 20 the Metropolitan Correctional Center (“MCC”) in San Diego, California,1 is proceeding 21 22 23 24 25 26 27 28 1 Plaintiff was arrested on September 16, 2019 at the San Ysidro Port of Entry by a Customs and Border Protection Officer (“CBPO”) and charged with importation of a controlled substance in violation of 21 U.S.C. §§ 952 and 960. See United States v. Larios-Fernandez, 3:19-cr-04102-BAS-1. See ECF No. 1 (“Complaint”). On September 23, 2019, he was ordered detained pending trial in that case. Id., ECF No. 10. The case was dismissed on the government’s oral motion on January 10, 2020. Id., ECF No. 26. On January 9, 2020, however, Plaintiff was indicted by a federal grand jury on one count of importation of heroin in violation of 21 U.S.C. §§ 952 and 960 in the related case entitled United States v. Marcelo Larios-Fernandez, 3:20-cr-0162-BAS-1. See id., ECF Nos. 1, 2; Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (A court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’”) (quoting Bennett 1 3:20-cv-01265-GPC-AHG Case 3:20-cv-01265-GPC-AHG Document 7 Filed 11/17/20 PageID.37 Page 2 of 4 1 pro se and in forma pauperis (“IFP”) in this civil action pursuant to Bivens v. Six Unknown 2 Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). 3 I. 4 In both his original and Amended Complaints, Plaintiff sought $840,000 in general 5 and punitive damages against the Metropolitan Correctional Center (“MCC”) based on 6 claims that unidentified correctional officers or “C/Os” there “abused their power” and 7 inflicted “cruel and unusual punishment” upon him while he was “going to court” on 8 October 14 or 15, 2019. See Compl., ECF No. 1 at 2‒3, 5; Amend. Compl., ECF No. 3 at 9 1‒3, 7. Procedural History 10 On September 14, 2020, the Court granted Plaintiff’s Motion to Proceed IFP, but 11 dismissed his Amended Complaint sua sponte for failing to state a claim pursuant to 28 12 U.S.C. § 1915(e)(2) and § 1915A(b). See ECF No. 4. The Court granted Plaintiff forty-five 13 days leave in which to file a Second Amended Complaint that corrected his pleading’s 14 deficiencies, but cautioned that should Plaintiff fail to amend in compliance with its Order, 15 his case would be dismissed. Id. at 6‒10. On November 12, 2020, two weeks after the time 16 to amend expired, but before the Court entered a final dismissal and clerk’s judgment, 17 Plaintiff submitted a letter requesting an extension of time in which to amend. See ECF 18 No. 6 at 1. 19 II. 20 While Plaintiff’s request for an extension of time is not timely, it was submitted 21 within two weeks of the Court’s deadline, he remains incarcerated, and is proceeding 22 without counsel.2 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) 23 (court has a “duty to ensure that pro se litigants do not lose their right to a hearing on the Letter/Motion for Extension of Time 24 25 26 27 v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). A Motion Hearing/Trial Setting hearing is date currently set for 12/9/2020 10:30 AM in Courtroom 4B before Judge Cynthia Bashant. See United States v. Marcelo Larios-Fernandez, 3:20-cr-0162-BAS-1 (ECF No. 34). 2 28 Plaintiff is represented by Leila Morgan of Federal Defenders of San Diego, Inc. in United States v. Marcelo Larios-Fernandez, 3:20-cr-0162-BAS-1. 2 3:20-cv-01265-GPC-AHG Case 3:20-cv-01265-GPC-AHG Document 7 Filed 11/17/20 PageID.38 Page 3 of 4 1 merits of their claim due to . . . technical procedural requirements.”). “‘Strict time limits ... 2 ought not to be insisted upon’ where restraints resulting from a pro se ... plaintiff’s 3 incarceration prevent timely compliance with court deadlines.” Eldridge v. Block, 832 F.2d 4 1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380 F.2d 465, 468 (9th Cir. 1967)). 5 Pursuant to Rule 6(b)(1)(A) of the Federal Rules of Civil Procedure, the court may 6 grant an extension of time for “good cause” if the moving party requests the extension 7 before the applicable deadline expires. Id. Rule 6(b) must be “liberally construed to 8 effectuate the general purpose of seeing that cases are tried on the merits.” Ahanchian v. 9 Xenon Pictures, Inc., 624 F.3d 1253, 1255 (9th Cir. 2010) (citing Fed. R. Civ. P. 1 “[The 10 Federal Rules] should be construed, administered, and employed . . . to secure the judge, 11 speedy, and inexpensive determination of every action and proceeding.”); accord Turner 12 v. Tierney, 678 F. App’x 580, 581 (9th Cir. 2017). 13 Although Plaintiff’s does not explain the circumstances preventing his timely 14 compliance with the Court’s September 14, 2020 Order, his Amended Complaint was 15 dismissed in part because he failed to name the individual officer or officers who are 16 alleged to have used unreasonable force against him as Defendants. See ECF No. 4 at 8 17 (citing Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987) (“[A] Bivens action can 18 be maintained against a defendant in his or her individual capacity only.”)). Plaintiff now 19 requests an extension of time to amend so that he can “get the name of the officer that beat 20 [him] up [and] and hit [him] for no reason.” See ECF No. 6 at 1. Construing this request in 21 the light most favorable to him, and recognizing that a Bivens action cannot proceed 22 otherwise, the Court finds good cause to grant Plaintiff the extension he seeks. See 23 Eldridge, 832 F.2d at 1136. 24 III. Conclusion and Order 25 For the reasons discussed, the Court GRANTS Plaintiff’s Letter/Motion requesting 26 an extension of time in which to file his Second Amended Complaint (ECF No. 6). Plaintiff 27 must file his Second Amended Complaint with the Clerk of the Court on or before Monday, 28 December 18, 2020. His Second Amended Complaint must cure all the deficiencies of 3 3:20-cv-01265-GPC-AHG Case 3:20-cv-01265-GPC-AHG Document 7 Filed 11/17/20 PageID.39 Page 4 of 4 1 pleading explained in the Court’s September 14, 2020 Order and must be complete by itself 2 without reference to his previous pleadings. Any Defendants not named and any claim not 3 re-alleged in the Second Amended Complaint will be considered waived. See S.D. Cal. 4 CivLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading 5 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 6 (noting that claims dismissed with leave to amend which are not re-alleged in an amended 7 pleading may be “considered waived if not repled.”) 8 If Plaintiff fails to file his Second Amended Complaint on or before December 18, 9 2020, the Court will enter a final Order dismissing the case based both on Plaintiff’s failure 10 to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 11 and 1915A(b), and his failure to prosecute. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th 12 Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, 13 a district court may convert the dismissal of the complaint into dismissal of the entire 14 action.”). 15 16 IT IS SO ORDERED. Dated: November 17, 2020 17 18 19 20 21 22 23 24 25 26 27 28 4 3:20-cv-01265-GPC-AHG

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