Opinion
2:22-cv-01051-KJM-CKD P
06-21-2023
MICHAEL LUCIEN GARCIA, Plaintiff, v. KATHLEEN ALLISON, et al., Defendants.
ORDER
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court is plaintiff's motion to stay these proceedings pending the receipt of his personal property following his prison transfer on or about May 9, 2023. ECF No. 21.
A review of the docket in this case indicates that the court screened plaintiff's complaint on November 22, 2022 and gave him the option of proceeding on the Eighth Amendment claims against defendants Colvin, Brooks, and Stewart, or of filing an amended complaint to fix the deficiencies with respect to the remaining defendants and claims. ECF No. 10. Plaintiff elected to file an amended complaint. ECF No. 13. However, to date, plaintiff has not filed an amended complaint, despite being granted an extension of time to do so. ECF No. 18.
On March 30, 2023, the undersigned issued Findings and Recommendations to dismiss this action without prejudice based on plaintiff's failure to file an amended complaint within the time provided. ECF No. 19. Plaintiff filed a cursory two-page objection, but no amended complaint. ECF No. 20.
In his most recent filing, plaintiff indicates that he was hospitalized and separated from his personal property. ECF No. 21. He requests a stay to be able to respond to court orders until such time as his personal property is returned to him. ECF No. 21. The court construes plaintiff's motion as a request for an extension of time. So construed, the motion will be granted. Plaintiff will be granted one final extension of time in which to file an amended complaint in this case. However, the court will not vacate the March 30, 2023 Findings and Recommendations at this time. Plaintiff will be granted 21 days in which to file an amended complaint. If plaintiff complies with this order, the court will vacate the Findings and Recommendations and proceed to screen plaintiff's amended complaint. If no amended complaint is filed within the 21 day time period, the court will submit the pending Findings and Recommendations to the district court judge.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for a stay (ECF No. 21) is construed as a request for an extension of time. So construed, the motion is granted.
2. Plaintiff shall have 21 days from the date of this order in which to file an amended complaint. No further extensions of time will be granted in this case.
3. If plaintiff fails to comply with this order within the time provided, the Findings and Recommendations issued on March 30, 2023 will be submitted to the district judge assigned to this case.