Opinion
1:22-cv-01160-ADA-SKO (PC)
07-28-2023
MICHAEL HANDY, Plaintiff, v. DAVID CASTILLO, Defendant.
ORDER VACATING FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO OBEY ORDERS AND FAILURE TO PROSECUTE
(DOC. 11)
ORDER PARTIALLY GRANTING MOTION FOR EXTENSION OF TIME WITHIN WHICH TO FILE FIRST AMENDED COMPLAINT
(DOC. 12)
SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE
Plaintiff Michael Handy is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C § 1983.
I. RELEVANT BACKGROUND
On June 8, 2023, this Court issued its First Screening Order. (Doc. 9.) The Court found Plaintiff's complaint failed to state a claim upon which relief could be granted. (Id. at 3-5.) Plaintiff was granted leave to file an amended complaint curing the deficiencies identified in the Court's order. (Id. at 5.) Plaintiff was ordered to either file a first amended complaint or a notice of voluntary dismissal within 21 days of the date of service of the order. (Id. at 5-6.) //
When Plaintiff failed to file either a first amended complaint or a notice of voluntary dismissal, the Court issued its Findings and Recommendations To Dismiss Action For Failure To Obey Court Orders And Failure To Prosecute on July 11, 2023. (Doc. 11.) Any objections were to be filed within 14 days of the date of service. (Id. at 4.)
On July 21, 2023, Plaintiff filed a document titled “Notice to the Court; And Notice of and Motion for Time Extension Under Necessity and in the Interest of Justice.” (Doc. 12.) Plaintiff states he “indeed mailed this Court a First Amended Complaint ... over two (2) weeks ago.” (Id.) Plaintiff contends he “has been having continued problems with his out going legal mail” and that “the court(s) would never receive the documents.” (Id.) He seeks a 30-day extension of time within which to “re-prepare and submit his (second) First Amended Complaint.” (Id.)
Plaintiff s filing was signed and dated July 14, 2023.
II. DISCUSSION
Plaintiff's motion indicates an intent to pursue this action. He contends he mailed a first amended complaint more than two weeks prior to his request dated July 14, 2023. Although the Court has not received a first amended complaint, it will accept Plaintiff's statement as true. The Court finds Plaintiff did not ignore the Court's screening order, and will therefore vacate its previously issued Findings and Recommendations.
Concerning Plaintiff's request for an extension of time, the Court will grant the request in part. As Plaintiff explains in his request, he will have “re-prepare” and submit his first amended complaint. Plaintiff will be afforded 21 days within which to file a first amended complaint instead of the 30 days requested. Assuming Plaintiff has previously prepared a first amended complaint within the previously ordered 21-day time period, a 30-day extension of time should not be necessary.
III. CONCLUSION AND ORDER
For the reasons stated above, the Court HEREBY ORDERS that:
1. The Findings and Recommendations to Dismiss Action For Failure To Obey Court Orders And Failure To Prosecute issued July 11, 2023 (Doc. 11) are VACATED;
2. Plaintiff's request for an extension of time is GRANTED IN PART. Plaintiff SHALL file his first amended complaint within 21 days of the date of service of this order; and
3. No further extensions of time will be entertained. Plaintiff is cautioned that a failure to obey this order will result in the Court reissuing findings and recommendations to dismiss this action for a failure to obey court orders .
IT IS SO ORDERED.