Opinion
1:20-cv-01630-NE-BAM (PC)
09-21-2021
LUIS GAETA, Plaintiff, v. SHERMAN, et al., Defendants.
ORDER GRANTING MOTION FOR EXTENSION OF TIME TO RESPOND TO SCREENING ORDER AND DENYING RENEWED MOTION FOR COUNSEL
(ECF No. 12)
BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE
THIRTY (30) DAY DEADLINE
Plaintiff Luis Gaeta (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action was removed to this Court on November 12, 2020. (ECF No. 1.)
On August 2, 2021, the Court denied Plaintiff's motion for appointment of counsel and screened the complaint. (ECF No. 11.) Plaintiff was directed to either file a first amended complaint or notify the Court of his willingness to proceed only on the cognizable claim identified by the Court, within thirty days from the date of service of that order. (Id.)
Currently before the Court is Plaintiff's request for a continuance and renewed request for appointment of counsel, filed September 16, 2021. (ECF No. 12.) Defendants have not had an opportunity to file a response, but the Court finds a response unnecessary. The motion is deemed submitted. Local Rule 230(1).
In his motion, Plaintiff states that although the Court's screening order is postmarked August 2, 2021, it was not delivered to his person until August 25, 2021, all but exhausting his thirty-day deadline. (ECF No. 12.) Plaintiff also argues that he disagrees with the Court's denial of his prior motion for appointment of counsel, highlighting the difficulties faced as a result of the COVID-19 pandemic, including the resulting institutional shutdowns and lockdowns, mail holds, mailing times, and difficulties accessing the law library at his institution. (Id.)
As to Plaintiff's renewed request for appointment of counsel, the Court will not reiterate the discussion presented in the August 2, 2021 screening order. The Court does not find that the COVID-19 pandemic presents the required exceptional circumstances, as all incarcerated plaintiffs are experiencing the same hardships faced by Plaintiff in litigating their civil actions.
After review of the motion, however, the Court finds good cause to grant the requested extension of time for Plaintiff to file his first amended complaint or notify the Court of his willingness to proceed on the cognizable claim identified. Fed.R.Civ.P. 6(b). The Court finds that an extension of thirty (30) days is appropriate under the circumstances.
Accordingly, IT IS HEREBY ORDERED as follows:
1. Plaintiff's renewed motion to appoint counsel, (ECF No. 12), is DENIED, without prejudice;
2. Plaintiff's motion for extension of time, (ECF No. 12), is GRANTED;
3. The Clerk's Office shall send Plaintiff a complaint form;
4. Within thirty (30) days from the date of service of this order, Plaintiff must either:
a. File a first amended complaint, limited to 25 pages, curing the deficiencies identified by the Court's August 2, 2021 screening order; or
b. Notify the Court in writing that he does not wish to file a first amended complaint and he is willing to proceed only on his claims for unconstitutional conditions of confinement in violation of the Eighth Amendment and for negligence against Defendants Sherman and Milam; and
5. If Plaintiff fails to comply with this order, the Court will recommend dismissal of this action, without prejudice, for failure to obey a court order and for failure to prosecute .
IT IS SO ORDERED.