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)

Case 3:20-cv-01265-GPC-AHG Document 7 Filed 11/17/20 PageID.36 Page 1 of 4

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARCELO LARIOS FERNANDEZ,
BOP #87515-298,

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ORDER GRANTING LETTER /
MOTION REQUESTING
EXTENSION OF TIME
TO FILE SECOND AMENDED
COMPLAINT

Plaintiff,

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Case No.: 3:20-cv-01265-GPC-AHG

vs.
METROPOLITAN CORRECTIONAL
CENTER,

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Defendant.

[ECF No. 6]

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Plaintiff Marcelo Larios Fernandez (“Plaintiff”), currently detained, awaiting trial at

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the Metropolitan Correctional Center (“MCC”) in San Diego, California,1 is proceeding

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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
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pro se and in forma pauperis (“IFP”) in this civil action pursuant to Bivens v. Six Unknown

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Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

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I.

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In both his original and Amended Complaints, Plaintiff sought $840,000 in general

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and punitive damages against the Metropolitan Correctional Center (“MCC”) based on

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claims that unidentified correctional officers or “C/Os” there “abused their power” and

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inflicted “cruel and unusual punishment” upon him while he was “going to court” on

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October 14 or 15, 2019. See Compl., ECF No. 1 at 2‒3, 5; Amend. Compl., ECF No. 3 at

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1‒3, 7.

Procedural History

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On September 14, 2020, the Court granted Plaintiff’s Motion to Proceed IFP, but

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dismissed his Amended Complaint sua sponte for failing to state a claim pursuant to 28

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U.S.C. § 1915(e)(2) and § 1915A(b). See ECF No. 4. The Court granted Plaintiff forty-five

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days leave in which to file a Second Amended Complaint that corrected his pleading’s

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deficiencies, but cautioned that should Plaintiff fail to amend in compliance with its Order,

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his case would be dismissed. Id. at 6‒10. On November 12, 2020, two weeks after the time

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to amend expired, but before the Court entered a final dismissal and clerk’s judgment,

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Plaintiff submitted a letter requesting an extension of time in which to amend. See ECF

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No. 6 at 1.

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II.

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While Plaintiff’s request for an extension of time is not timely, it was submitted

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within two weeks of the Court’s deadline, he remains incarcerated, and is proceeding

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without counsel.2 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)

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(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

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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).
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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.
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merits of their claim due to . . . technical procedural requirements.”). “‘Strict time limits ...

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ought not to be insisted upon’ where restraints resulting from a pro se ... plaintiff’s

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incarceration prevent timely compliance with court deadlines.” Eldridge v. Block, 832 F.2d

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1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380 F.2d 465, 468 (9th Cir. 1967)).

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Pursuant to Rule 6(b)(1)(A) of the Federal Rules of Civil Procedure, the court may

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grant an extension of time for “good cause” if the moving party requests the extension

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before the applicable deadline expires. Id. Rule 6(b) must be “liberally construed to

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effectuate the general purpose of seeing that cases are tried on the merits.” Ahanchian v.

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Xenon Pictures, Inc., 624 F.3d 1253, 1255 (9th Cir. 2010) (citing Fed. R. Civ. P. 1 “[The

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Federal Rules] should be construed, administered, and employed . . . to secure the judge,

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speedy, and inexpensive determination of every action and proceeding.”); accord Turner

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v. Tierney, 678 F. App’x 580, 581 (9th Cir. 2017).

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Although Plaintiff’s does not explain the circumstances preventing his timely

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compliance with the Court’s September 14, 2020 Order, his Amended Complaint was

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dismissed in part because he failed to name the individual officer or officers who are

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alleged to have used unreasonable force against him as Defendants. See ECF No. 4 at 8

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(citing Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987) (“[A] Bivens action can

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be maintained against a defendant in his or her individual capacity only.”)). Plaintiff now

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requests an extension of time to amend so that he can “get the name of the officer that beat

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[him] up [and] and hit [him] for no reason.” See ECF No. 6 at 1. Construing this request in

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the light most favorable to him, and recognizing that a Bivens action cannot proceed

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otherwise, the Court finds good cause to grant Plaintiff the extension he seeks. See

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Eldridge, 832 F.2d at 1136.

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III.

Conclusion and Order

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For the reasons discussed, the Court GRANTS Plaintiff’s Letter/Motion requesting

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an extension of time in which to file his Second Amended Complaint (ECF No. 6). Plaintiff

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must file his Second Amended Complaint with the Clerk of the Court on or before Monday,

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December 18, 2020. His Second Amended Complaint must cure all the deficiencies of
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pleading explained in the Court’s September 14, 2020 Order and must be complete by itself

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without reference to his previous pleadings. Any Defendants not named and any claim not

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re-alleged in the Second Amended Complaint will be considered waived. See S.D. Cal.

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CivLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading

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supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)

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(noting that claims dismissed with leave to amend which are not re-alleged in an amended

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pleading may be “considered waived if not repled.”)

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If Plaintiff fails to file his Second Amended Complaint on or before December 18,

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2020, the Court will enter a final Order dismissing the case based both on Plaintiff’s failure

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to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)

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and 1915A(b), and his failure to prosecute. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th

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Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint,

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a district court may convert the dismissal of the complaint into dismissal of the entire

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action.”).

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IT IS SO ORDERED.
Dated: November 17, 2020

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